Property - Partition - Respondent claimed for partition of suit property for securing her share in property - Injunction order passed restraining Appellant from alienating and creating third party rights against suit property - Hence present appeal - Whether injunction order justified - Held, Respondent's claim restricted to securing up to extent of share in suit property - Security could be compensated by monetary consideration from remaining owners - Appellant promised for not creating third party rights in respect of suit property - Appellant's promise sufficient for protection of Respondents interest - Injunction order not justified - Appeal partly allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 960 OF 2013
WITH
Sobha Developers Limited
vs
Ms. Lanka Sitaram Kamthe and others
CORAM: ANOOP V
. MOHTA, J.
DATE : September 05, 2013
Citation;2014(2) ALLMR 706 Bom,2013(6)ABR29, 2014(1)BomCR830
Rule. Heard finally by consent of parties.
The Appellantoriginal Defendant No.1, developer, has
challenged order dated 26 July 2013 passed by the Joint Civil Judge,
Senior Division, Pune, whereby granted Injunction Application
(Exhibit 5) filed by Respondent No.1 (Original Plaintiff).
The Suit is filed on 14 February 2013 by the Plaintiff for
partition claiming 1/6th share in the property in question and claims to
set aside the registered development agreement, and the Power of
Attorney with power to convey the property, executed between
Defendants 1 to 8 and Defendants 9 and 10 dated 20 May 2005 and
later on Defendants 9 and 10 executed further development
agreement and power of Attorney with right to convey the property
with Appellantsoriginal Defendants, dated 21 July 2006. An
Application (Exh. 5) is also filed for the adinterim relief/injunction on
18 February 2013.
The Appellant opposed the adinterim injunction by filing
detailed reply dated 18 March 2013 and raised various issues
including of limitation, by raising specific averments that the Plaintiff
was fully aware of the documents, as well as, the development and
at least from 11.11.2009.
Admittedly, there was no ad interim relief
pending the impugned order dated 26 July 2013 whereby the learned
Jude has granted the relief so recorded below :
“1
Application below Exh5 is partly
allowed.
2 Defendant no.11 is hereby temporarily
restrained from further alienating the suit property or
creating third party interest in the suit property or selling
etc the suit property in any manner through anybody till
the disposal of the suit.
”
It is relevant to note here that the Appellant has also filed
Special Civil Suit No.228/2013 against all Respondents (for partition
of family property of all Respondents i.e. 5 Hectares and 14 ares.).
The claim, even if any, of the Plaintiff/Respondent No.1 in the present
property in question is about 23 ares. An Application for injunction
(Exh. 5) filed by the Appellant in the Suit some time in June 2013 is
also pending with the Civil Judge, Senior Division, at Pune. The
filing of Suit by the Appellant, as contended by the learned counsel
appearing for the original Plaintiff/Respondent No.1 itself shows the
entitlement of Respondent No.1's right.
6
The issue of partition even if any, as sought to be
contended in the background, needs to be considered in view of above
undisputed position at later stage, but the ultimate challenge is to
the development agreements/Power of Attorney of the year 2005 and
2009, by this Suit of the year 2013. The Suit for partition, even
otherwise, could have filed at the earliest point of time, as the
transfer of the property for development in the year 2005 and
subsequently in 2009, itself was well within the knowledge and so
also the development which has been going on since then. There is
no dispute raised except by the plaintiff. All other legal heirs/owners
have signed those registered documents, based upon which the
development commenced with requisite sanctions from the concerned
Authorities, at Pune. Those sanctions are also not in dispute. That
itself means the requisite consent/verification of documents and no
objection from the owners have been obtained as a part of the
procedure. There is no averment made by the plaintiff that she was
not aware of these developments at any earlier point of time. The
property development has been in progress, based upon those
document since 2005, uninterruptedly.
7
The learned Judge recorded in paragraph 13 factual
background about the appellant's knowledge and also the fact that
130 developed flats have already been sold by the
appellant/Defendant No.11. No ad interim relief was granted till
the impugned order. The construction was on and so also the
development. The issue of limitation also though discussed by the
learned Judge, but without deciding the same proceeded to grant
injunction as recorded above.
8
The prayer for partition, in the present facts and
circumstances, cannot be isolated with reference to other prayers,
where declaration is admittedly sought beyond a period of three years
to set aside and/or declare those registered documents null and void.
At present, the Appellant's rights are admittedly flowing from those
registered documents specifically when except Plaintiff, all other heirs
never objected for the development at any point of time.
The dispute between the family members, if any and/or
the rights of the plaintiff in the family property is always a matter of
trial and discussion in a situation where knowing fully the transfer of
property by all other heirs, no objection whatsoever raised at any
earlier point of time. The internal arrangement between the family
members in such background just cannot be overlooked, though not
possible to decide and/or adjudicate at this prima facie stage, but the
conduct to claim 1/6th share, even if any, out of the property in
question, though other properties are available and is again a matter
which just cannot be overlooked while granting and/or considering
the prayer of interim relief/injunction, so made by the plaintiff, to
halt the project in question.
The conduct of Plaintiff, in above background, is also
relevant factor apart from delay in initiating the proceedings at the
appropriate stage knowing fully the development on the property in
question. The law with regard to the grant of injunction and/or
refusal as discussed need no discussion. What required by the Court is
to consider the facts and circumstances of the case in hand. Having
once noted the stage of development, as well as, the creation of third
party rights, I am inclined to observe that at this stage, no case is
made out by the Plaintiff for grant of injunction as ordered. It is not
question of deciding the shares and/or rights of the Plaintiff as it is a
matter of trial, but the question is also to consider the right so created
in favour of the Appellant based upon the registered and valid
documents of 2005 and 2006 and the right of third party so already
created since long, is again an additional factor which goes against
the Plaintiff.
11
The question of balance of convenience and/or equity, in
view of above, is also tilt in favour of the Appellant and the persons in
whose favour, rights have already been created. The injunction so
granted, only after hearing both the parties on the basis that the Suit
is for partition only. This is not the stage to disturb the right so
already created. The issue of irreparable loss, in view of the above
admitted position on record, in no way, support the Plaintiff as her
interest is to secure her share of the property basically from the family
property and against all other legal heirs/coowners of the property.
This is not the only property as recorded above, as the Appellant has
also filed Suit with intention to have a partition of the family property
so that considering the share of the Plaintiff, if any, in the present
property, can be compensated and adjudicated in the other Suit. The
right of the Plaintiff to have a share also in the property, in the facts
and circumstances needs to be adjudicated and can be decided during
the trial and/or subject to settlement between the parties which can
be done at any point of time. Had the Suit and/or proceedings
initiated immediately from the date of knowledge, the situation would
have been different. I am not deciding the rights of the Plaintiff,
even if any. It is kept open for the trial Judge to decide.
Now, what remains is the security to the extent of
Plaintiff's share which, after trial and/or settlement, may be
compensated as recorded above from the remaining property by the
remaining owners and/or by paying monetary consideration. The
Plaintiff has estimated value of her share to the extent of
Rs.50,00,000/ (Rupees fifty lacs) in the Suit. The estimation itself is
not final amount. In the interest of justice at this stage, therefore, I
am inclined to accept the statement of the learned Senior Counsel for
the Appellant, that they will not create third party rights in respect of
three flats in building known as “Carnation” on the suit plot having
estimated cost about Rs.3 crores (Rupees three crores). This
statement, in my view, is sufficient to protect the interest of the
plaintiff for the time being. Therefore the injunction, as granted by
the learned Judge in view of above undisputed position on record, is
wrong.
In view of above, I am inclined to set aside/modify the
order dated 26 July 2013 and that there is no question of any
restraintment order against Defendant No.1 from alienating and/or
creating third party right or interest in the property as ordered.
14
The liberty is granted to parties to apply for transfer
and/or tagging of Suit No.769/2013 with Suit No.228/2013 as both
Suits are pending before the Civil Judge, Senior Division, Pune having
equal jurisdiction.
The liberty is also granted to the parties to apply for early
hearing of Application (Exh. 5) in the Suit filed by the Appellant.
In view of the present Appeal from Order is partly allowed
and it is disposed of accordingly. In view of disposal of AO, Civil
Application No.1144/2013 stand disposed of accordingly.
(ANOOP V
. MOHTA, J.)
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