Indravadan Maneklal Shah vs Mahesh Bhai Baba Bhai Patel and Others

S.G. Shah J.

Heard learned advocate Mr. S.P. Majmudar for the appellant and Mr. U.D. Shukla, learned advocate for Mr. Viral K. Salot, learned advocate for the respondents, who are appearing through caveat. The sum and substance of the plaintiff-appellant''s case is to the effect that he is one of the partner with present respondents while executing agreement to sell in favour of all of them by one Narendra Ganeshdas Patel for the suit property on 29.12.2010. At present, nature and details of suit property not of much material, however, the same are described in impugned order. The present controversy is limited to the right of the appellant with defendants in suit land which is yet to be purchased by them from its original owner. However, the plaintiff has submitted that by agreement to sell, which is referred in herein above, they all were put in possession together; now defendants are not entitled to part with such possession to anyone or to enter into any contract in any manner since he is one of the partner and beneficiary of the agreement to sell. Whereas, the defendant has contended that the possession of the property was already handed over to some third party for development and that unless and until sale-deed is executed in favour of all of them or any one of them, more particularly, when as on date, plaintiff is not the owner or in actual possession of the suit property, he has no right whatsoever and, therefore, defendants are supporting the impugned order dated 6.5.2013 whereby the Chamber Judge of City Civil Court at Ahmedabad has rejected the notice of motion filed by the plaintiff appellant.

In the impugned order, the trial Court has also considered the issue regarding ownership and came to the conclusion that when plaintiff has not become lawful owner of the suit property, and when ownership of the suit property is yet not transferred in the name of defendants, the apprehension of the plaintiff and the suit itself is not well-founded and, therefore, the interim relief was refused.

At present, irrespective of entering into merits or demerits of the case, considering the fact that practically till the date of decision in notice of motion by impugned order, both the sides have hidden some facts and details from the trial Court. The paper-book of relevant documents are produced on record. On verification of reply filed by the defendants, it becomes clear that defendants have categorically disclosed that suit property has been handed over to one Digeshbhai and said Digeshbhai has served a notice upon the plaintiff on 23.9.2011 and plaintiff has also replied such notice through his advocate and one complaint was filed with reference to the suit property and during all such process, even the plaintiff has also agreed to handover the possession and rights of such property to Digeshbhai. If it is so, then there is material suppression by the plaintiff in his plaint itself when the fact remains that plaintiff has never controverted such fact disclosed on record by the defendants through their written statement in the month of May, 2012. Similarly, even the defendants have failed to file certain documents on record which they have referred in their reply as well as agreement by which they have handed over the possession to Digeshbhai so as to enable the plaintiff to join such necessary party as a litigant in the pending suit. Therefore, prima facie it becomes clear that both the parties are trying to hide and seek certain information and documents from the Court and waiting for favourable order without disclosing correct information.

In view of above fact, there is also issue regarding non-joinder of necessary parties. Appellant is claiming right, title and possession over the suit property, which is now at-least hold by some third party, namely, Digeshbhai.

However, at present, we are concerned with the record available before the trial Court till the date of hearing and disposal of notice of motion, and any information disclosed thereafter are not material. Therefore, if we peruse the available record, it becomes clear that there is no prima facie case in favour of the plaintiff inasmuch as there is no absolute right vested in the plaintiff so far as the suit property is concerned, when at the most it may be an internal dispute between the partners for which plaintiff has to take steps in accordance with law by disclosing of relevant information and producing all material evidence. If plaintiff is not in possession of any material, he should have taken recourse of law to get such evidence, but, after disclosure on record about certain facts, if steps are not taken in accordance with law, then, based upon available evidence alone, when prima facie case is not in favour of the plaintiff, plaintiff is not entitled to interim relief as prayed for.

However, the fact remains that plaintiff is one of the beneficiary of the agreement to sale in question and, therefore, though present appeal is dismissed summarily, it is made clear that whatever is discussed and observed herein above is only for deciding the present appeal. Thereby, the parties are at liberty to disclose and adduce relevant evidence before the trial Court and to apply for fresh interim relief or for modification of impugned order in accordance with law. In such case, the trial Court shall decide such application without being influenced by the observations in the impugned order as well as in the present order.

With above observation the Appeal from Order is summarily dismissed. In view of order passed in Appeal from Order, the Civil Application does not survive and same stands disposed of accordingly.