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PETITIONER: ASHWIN KUMAR   K. PATEL

       Vs.

RESPONDENT: UPENDRA J. PATEL & OTHERS

DATE OF JUDGMENT:       11/03/1999

BENCH: M. Jagannadha Rao. & S. Saghir Ahmad.

JUDGMENT:

        M.JAGANNADHA RAO,J.

       Leave granted.

   This  is  an  appeal by the plaintiff in  the  suit  and arises  out  of  an  application   for  grant  of  temporary injunction   filed  under  Order  39   Rule  1  CPC  by  the plaintiff-appellant.  The suit 337 of 1996 is now pending in the  Court  of  the Civil Judge (S.D.), Baroda.   The  trial Court  granted  temporary injunction (wrongly  described  as permanent  injunction)  by order dated 2.8.1997  restraining interference  with the appellant’s possession in respect  of 8138  sq.meters  in Survey No.224 and 246 of  Akota,  Baroda District.   On appeal by defendants 15 to 19, the High Court of  Gujarat by orders dated 23.2.1998 in A.O.  409 of  1997, allowed  the appeal and remitted the matter to the  District Court  and  directed that meanwhile, the status quo  on  the spot  be  maintained.   The defendants 1 to 14  support  the plaintiff.

   It  appears  that the defendants 1 to 14 are  the  legal heirs  of  the  owner, one Gulam Husain Momin  who  died  on 12.5.1971.   The  plaintiff  claims  that  the  said  owners executed   an  (Unregistered)  agreement   of   sale   dated 14.10.1980  in his favour and received Rs.25,000 on that day and later received various amounts on various days totalling Rs.5,75,000 and the sale of the 8138 sq.meters was initially at  the  rate  of  Rs.1.85  per  sq.   meter.   Later  by  a subsequent  agreement dated 6.4.1996, the rate according  to the  plaintiff was changed to Rs.44.35 per sq.  meter and  a further  sum of Rs.  1 lakh was paid.  Plaintiff claimed  to be  in  possession.   The suit was filed  on  15.6.1996  for perpetual injunction restraining the defendants 15 to 19 and 28  from entering into any sale transaction or agreement  or transfer  of  the  suit  land and  for  not  obstructing  or interfering with plaintiff’s possession of suit land.

   The  defendants  15  to  19 and 28  contested  the  suit claiming  that  under a registered agreement of  sale  dated 16.7.1991  entered into by defendants 15 and 28, as power of attorney  holders under a registered power of attorney dated 16.7.1991,  the  abovesaid vendors agreed to sell  the  same property  to whomsoever defendants 15 and 28 would sell  and possession  was  also given by a receipt dated 16.7.1991  to defendants  15 and 28.  Thereafter, it is said that the said

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power  of attorney holders sold this property to  defendants 15 to 19 under five sale deeds dated 17.4.1996.  Here it may be  noted that it is the case of the owners that by a public notice dated 26.3.1996, the said owners (defendants 1 to 14) had cancelled the power of attorney dated 16.7.1991 and that even  the agreement dated 16.7.1991 was not true.  It is the case  of the owners, defendants 1 to 14 that they had  given possession  to  the  plaintiff  and even on  date  of  suit, 15.6.96,  the  plaintiff  was  in  possession.   These  were broadly, the rival contentions.

   In the interlocutory application filed by the plaintiff, the  trial  Court held that the land being new tenure  land, the  agreements entered into by the owners in favour of  the plaintiff  on  14.10.1980 and 6.4.1996, even if  true,  were void  as the requisite permission of the competent authority was  not obtained.  For the same reason, the agreement dated 16.7.1991 by defendants 15 and 28 in favour of defendants 15 to  20,  even  if true, and sale-deeds  dated  17.4.1996  by defendants  15 and 28 in favour of defendants 15 to 19  were also  void.   However,  on the question of  possession,  the trial Court relied upon the case of the owners (defendants 1 to  14)  to  the effect that they had put the  plaintiff  in possession.   Hence,  irrespective of title,  the  plaintiff had, at any rate, "permissive possession" and the defendants 15  to 19 and 28 were not in possession and the latter could not interfere with plaintiff’s possession.

   The High Court, while dealing with this appeal preferred by  defendants  15 to 19, observed that the trial Court  had mainly  relied  upon  a compromise  decree  dated  14.8.1992 between  the owners(defendants 1 to 14) and defendants 20 to 25  in  an  earlier suit, bearing Suit No.1384/88  filed  by defendants  20  to 25 against the owners on the basis of  an agreement  dated 14.10.1980, allegedly executed by the  same owners.  According to the High Court, while it was true that the  said defendants 20 to 25 accepted the possession of the owners defendants 1 to 14, the said admission related to the date of compromise dated 26.4.1990 and not to 14.8.1992 when the  compromise  was recorded and hence the trial Court  was wrong in thinking that the present defendants 15 to 19 could not  have come into possession on 16.7.1991 from the owners. According  to  the High Court, the Trial Court was wrong  in thinking  that there was an admission by defendants 20 to 25 of  the  possession of the owners, defendants 1 to 14 as  on 14.8.92,  the date when the compromise was recorded and also in  thinking  that defendants 15 to 19 could not  have  come into  possession  on  16.7.1991.   The  admission,  if  any, related  to  26.4.90 the date of compromise and  there  was, according  to the High Court, no inconsistency with the case of  defendants  15 to 19 of possession being given  to  them under  the agreement dated 16.7.1991.  Further, the  finding of  the  trial  Court that the property was new  tenure  was challenged  even  by  the plaintiff by filing A.O.   476  of 1997.  The High Court said that ‘this also makes the factual foundation  of the trial Court’s order erroneous’.  For  the above  reasons,  the High Court set aside the order  of  the trial  Court and remitted the matter for fresh decision.  It is  against the above order that the plaintiff has preferred this appeal.

   The  point for consideration is whether the order of the High  Court  in remitting the matter to the trial Court  was necessary?   Question  also  is whether  this  court  should

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remand the case to the High Court in the event of this Court holding  that  the remand by the High Court was  not  called for?   If not, whether the order of the trial Court is to be sustained?

   In our view, the High Court should not ordinarily remand a  case under Order 41 Rule 23 CPC to the lower Court merely because  it considered that the reasoning of the lower Court in  some  respects  was wrong.  Such remand orders  lead  to unnecessary delays and cause prejudice to the parties to the case.   When  the  material was available  before  the  High Court,  it should have itself decided the appeal one way  or other.   It could have considered the various aspects of the case  mentioned  in  the  order  of  the  trial  Court   and considered  whether the order of the trial Court ought to be confirmed  or  reversed or modified.  It could  have  easily considered  the  documents and affidavits and decided  about the  prima-facie case on the material available.  In matters involving  agreements of 1980 (and 1996) on the one hand and an  agreement  of 1991 on the other, as in this  case,  such remand  orders would lead to further delay and  uncertainty. We  are, therefore, of the view that the remand by the  High Court was not necessary.

   We  have  also considered whether, on that  account,  we should   send  back  the  matter  to  the  High  Court   for consideration  of  the appeal.  We are of the view that,  on the  facts  of this case, this Court can decide whether  the temporary  injunction  granted by the trial Court should  be confirmed  or  not.   We are, therefore, not  remitting  the matter to the High Court because a further remand would lead to delay and perhaps one more special leave petition to this Court.

   The  facts  set out earlier show that the plaintiff  has relied  upon  an  agreement  of sale  dated  14.10.1980  and according  to the plaintiff the agreement of sale stipulated a  rate of Rs.1.85 per sq.meter and the plaintiff has paid a sum  of  Rs.5,75,000 and the said agreement was modified  on 6.4.1996  fixing the rate at Rs.44.85 per sq.meter and it is said  one more lakh of rupees were paid thereafter, in  all, Rs.7  lakhs and possession receipt was issued.  The  owners, defendants  1  to  14, supported the  plaintiff’s  case  and stated that they had put the plaintiff in possession.

   The  case  of the owners further was that the  agreement dated  16.7.1991 set up by defendants 15 to 19 was not  true and  valid and that the power of attorney dated 16.7.1991 in favour  of defendants 15 and 28 stood revoked so far as  the 11th  defendant was concerned, as the 11th defendant died on 25.2.1994.   The  trial  Court also held that the  power  of attorney  was  prima facie not an irrevocable one.  It  also held that the agreement entered into by the owners in favour of  the  plaintiff on 14.10.1980 and 6.4.1996 and  also  the agreement  by the power of attorney agents defendants 15 and 18  dated  16.7.1991  in favour of defendants 15 to  19  was invalid  for  breach of the provisions of the  Tenancy  Act. The Court Commissioner in the special suit 293 of 1996 filed by  the plaintiff earlier on 25.2.1996 got a panchnama  done and had stated that, on physical verification, the plaintiff was  found to be in possession (vide para 45 of the judgment of the trial Court).  The trial Court also observed that the mere  fact that the defendants 15 to 19 and 28 produced some bills,  receipts,  cash memos - xerox copies as evidence  of

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purchase  of  construction  material did not  establish  the possession  of  the said defendants 15 to 19.  It held  that the  original owners’ possession as per the compromise dated 26.4.80  in Suit No.1384 of 1988 between defendants 1 to  14 and  defendants  20  to 25, must be  treated  as  subsisting inspite  of  the  agreement  between   the  owners  and  the defendants  15  to  19 dated 16.7.1991 and  inspite  of  the possession receipt in favour of defendants 15 and 28.  There is  some force in the contention of the appellant before  us that  even if the Compromise in Suit 1384/88 dated 26.4.1990 was  recorded  on  14.8.92,  the defendants 20  to  25,  who accepted  plaintiff’s  possession on 26.4.90 would not  have failed  to bring it to the notice of the Court on  14.8.1992 when  the compromise was recorded, if the plaintiff was  not in  possession.   The High Court did not even refer  to  the case   of  the  plaintiff   regarding  the  agreement  dated 14.10.1980 said to have been executed by the defendants 1 to 14  in  favour  of the plaintiff initially and  the  various payments  upto Rs.5,75 lakhs made thereunder, and to Rs.   1 lakh  paid under the modified agreement dated 6.4.1996.   In their   written   statement,  the   owners   supported   the plaintiff’s  possession  even as on date of suit.   The  FIR filed  by the plaintiff is also some evidence of a claim  to possession  of plaintiff and the attempt of defendants 15 to 19  to dispossess the plaintiff.  Above all, the finding  of the  Court Commissioner in special suit No.293 of 1996  that plaintiff  was in possession is of considerable  importance. Further,  several of defendants 1 to 14 filed affidavits  in the  trial Court stating that they have not entered into any agreement  with  defendants 15 to 19 and that they  did  not receive  any  cheques  from  defendants 15 to  19  and  from defendants 20 to 27 and that plaintiff was in possession.

   A  reading of the judgment of the trial Court shows that though  the  agreement  of sale executed in  favour  of  the plaintiff  was, according to the said Court, invalid because of  its being in breach of the Tenancy Act still, in view of the  compromise  decree and the subsequent admission of  the defendants  1 to 14 and report of the Court Commissioner  in special  suit  No.293  of 1996, the trial  Court  held  that plaintiff  was  in  "permissive   possession"  as  this  was accepted by the owners.  It held that a possessory right was sufficient  to  permit  the plaintiff to have  an  order  of temporary injunction in his favour.

   Therefore,  without  going  into  the  validity  of  the agreements executed by the owners in favour of the plaintiff or  defendants  15 and 28, or the validity of the sale  deed executed  by  defendants 15 and 28, we are of the view  that the  trial Court was right in coming to the conclusion  that the  plaintiff  has made out a prima facie case.  The  trial Court  has given several reasons for the grant of  temporary injunction  and,  in our view, the two reasons given by  the High  Court were, on the facts, not sufficient to warrant  a remand.

   It is, however, made clear that the findings relating to the  rights of the parties, the title to the property or  as to possession as given by the trial Court and as accepted by us  are  all tentative and will be subject to findings  that may  be arrived at by the trial Court in the suit after  the evidence  is led.  In addition to the injunction granted  by the  trial Court, we direct the plaintiff to maintain status quo  on  spot  and not to create 3rd party  rights  or  make

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constructions  on  the property nor alter the nature of  the property pending disposal of the suit.

   Subject  to  the  above, the appeal is allowed  and  the order  of  the High Court is set aside and the order of  the trial  Court  is  restored.  There will be no  order  as  to costs.