ORAL ORDER
1. Heard learned advocate Mr.Hemang Parikh for the appellant and learned advocate Mr.Dhruvik Patel for respondent No.1.
2. Upon joint request of learned advocates of both the sides, this Appeal From Order is taken up for final hearing.
3. By way of the present Appeal From Order, the
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appellant has challenged the order dated 08.12.2023 passed by the City Civil Court, Ahmedabad below Exhibits 6 and 7 in Civil Suit No.1347 of 2021, whereby the Court had directed the parties to maintain status quo of the property till final disposal of the suit.
4. The brief facts leading to this Appeal From Order are as under:-
4.1 The respondent No.1 preferred Civil Suit No.1347 of 2021 against the present respondent Nos. 2 and 3 and the present appellant for the property situated at village Vatva Survey No.1293 admeasuring area about HA 1-03-20 square meters for the relief of declaration and permanent injunction. The original owner Shanaji Devaji Thakor executed an Agreement to Sell on 08.05.1996 in favour of defendant No.1 and in turn the defendant No.1 executed the Agreement to Sell dated 29.03.2019 in favour of the plaintiff, which was an order to Agreement to Sell.
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Thereafter, the present suit for the relief of declaration and permanent injunction was filed. The present appellant was originally not joined in the suit, however, on application under Order 1 Rule 10 of the Code of Civil Procedure, 1908, the appellant was joined as defendant No.3.
4.2 Learned advocate for the appellant has submitted that the ownership of the suit land belongs to defendant No.3 - appellant. It is submitted that Shanaji Devaji Thakor executed a Will, and after the death of Shanaji Devaji Thakor, present defendant No.3, who was the beneficiary of the Will, filed a Civil Misc. Application No.383 of 2014 before the learned Civil Civil Court, Ahmedabad. The said application came to be granted on 19thAugust, 2015 and the succession certificate was issued in favour of defendant No.3. The said order of granting succession certificate has never been challenged till date and has attained finality.
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4.3 Learned advocate for the appellant has submitted that Agreement to Sell does not create any right, title or interest in favour of the plaintiffs and the learned trial Court has gravely erred in granting the injunction application by directing them to maintain status quo. It is submitted that the possession of the suit property on the date of the suit was not of the plaintiffs, but as per the Commissioner's report, which was done at the instance of the plaintiffs clearly points out that defendant No.1 is in possession of the suit property. Hence, the learned trial Court has gravely erred in not appreciating the factum of possession and the legal submission.
5. Per contra, learned advocate for respondent No.1 has submitted that the suit is for the declaration and permanent injunction and, prima facie, defendant No.1 has not proved the title of the suit property. It is submitted
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that there are clouds over the so-called title of the appellant and unless and until defendant No.3 proves the title, the present appeal is not maintainable. It is submitted that the learned trial Court has considered the documents and contentions of the parties and has also taken into consideration the relevant documents and the findings arrived at by the learned trial Court do not require any interference.
6. Having considered the submissions and the papers produced on record, more particularly, the plaint as well as Court Commissioner's report, it is clear that on the date of the suit, plaintiff was not in possession. Even, the application which was submitted by the plaintiff on 30.11.2021 speaks that the possession of the property is not of the plaintiff and on the basis of endorsement, status quo was granted by the learned trial Court on 30.11.2021.
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7. The submission of the learned advocate for respondent No.1 that the clouds over the title is not cleared by defendant No.3. Whole submission is that the suit is filed by the plaintiff - respondent No.1, and prima facie, the plaintiff has to show title and possession over the suit property. In the present case, prima facie, the plaintiff has miserably failed to establish title as well as possession over the suit property. In the catena of decisions, the principle is very clear that the Agreement to Sell does not create any right, title or interest qua the suit property. Hence, the impugned order is against the settled principles of law. The learned trial Court has given a complete go by to the aspect that defendant No.3 was holding a valid succession Certificate which was issued by the competent Court and the said succession Certificate has not been challenged till date. Any observation made by the learned trial Court in dealing with the succession certificate in the order impugned was not called for. Since
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neither the parties have challenged the granting of succession certificate, the learned trial Court was not expected to opine anything on the succession certificate which was issued by the competent court.
8. In view of the totality of the facts, the order impugned requires interference. The present appeal deserves consideration and the same is allowed. The order dated order dated 08.12.2023 passed by the City Civil Court, Ahmedabad below Exhibits 6 and 7 in Civil Suit No.1347 of 2021, is hereby quashed and set aside. Exhibits 6 and 7 of notice of motion, is hereby dismissed. No order as to costs.
9. After dictation of the order, learned advocate for respondent No.1 has prayed for suspension of the order. Learned advocate for the appellant has objected. Request is rejected.
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 In view of the order passed in the main matter i.e. Appeal From Order No.281 of 2023, the present Civil Application does not survive and stands disposed of accordingly.
(D. M. DESAI,J)
MANOJ
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