CHANDRAKANT KANTILAL JHAVERI Vs. MADHURIBEN GAUTAMBHAI

JUDGEMENT

(1.) The present appeal arises against the judgment and order dated 3-4-2006 passed below applications Exhs. 19 and 23 under Order 7, Rule 11 of the Civil Procedure Code, whereby the suit has been dismissed.

(2.) The short facts of the case appears to be that the plaintiff (for the sake of convenience, the parties shall be referred to as per their status in the plaint or in the present appeal) filed the suit being Special Civil Suit No. 23 of 2004 in the Court of the Civil Judge (S.D.), Ahmedabad Rural for a declaration that the transaction of the sale-deeds for the land at Survey Nos. 436/1 and 436/2 at village Gota, Taluka Dascroi, Ahmedabad as bogus and unauthorised and be quashed and set aside. It was also prayed that the decree be passed for cancellation of the documents referred to in Paras 3 and 4 executed in favour of the defendant Nos. 1 and 2. The third prayer in the suit was that the defendant No. 2 be directed to hand over the possession of the property to plaintiff. The fourth prayer in the suit was that defendant No. 2 be restrained from transferring or alienating the property by sale, mortgage or gift in any manner.

(3.) The plaintiff in the said suit submitted an application Exh. 5 for interim injunction to restrain the defendant No. 2 from transferring or alienating property by sale, mortgage, gift or otherwise until final disposal of the suit. The learned Judge did not grant any ex-parte injunction, but passed the order for issuing notice on 4-2-2002. The defendants appeared in the suit, and thereafter, the defendant No. 1 submitted an application for dismissal of the suit being Exh. 19 under Order 7, Rule 11 of the Civil Procedure Code. Similarly, the defendant No. 2 also submitted an application for dismissal of the suit being Exh. 23 under Order 7, Rule 11. Both the defendants contended inter alia that the plaintiff is the real brother of defendant No. 1 and a Power of Attorney was also executed in favour of defendant No. 1 and based on such Power of Attorney, the saje-deeds are executed. It was also stated that the consideration of the sale of the property is transferred in the account of the plaintiff, and therefore, the said fact has been suppressed.