BHAVESHKUMAR KANTIBHAI BRAHAMBHATT Vs. RUPESH BHANUBHAI BRAHAMBHATT

JUDGEMENT

(1.) Heard Mr. Hiren M. Modi, learned advocate for the petitioner as also Mr. Gaurang Patel, learned advocate for the Respondent on caveat.

(2.) This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the 2nd Additional District Judge, Nadiad dtd. 14/9/2022 in Civil Miscellaneous Appeal No.42 of 2022 whereby the injunction granted by the trial Court below Exh.5 in Regular Civil Suit No.45 of 2019 filed at the instance of the present petitioner - original plaintiff came to be modified and the appellate Court directed to maintain status-quo in respect of the suit property.

(3.) It is the case of the petitioner - original plaintiff in the suit that the original plaintiff had executed a mortgaged deed in the year 2003 in favour of his family relative, which was redeemed in the year 2016 on repayment of the amount borrowed. It is further the case of the petitioner - original plaintiff that in respect of the suit property registered agreement to sale came to be executed in favour of the Respondent - defendant, which is wholly incorrect. According to the petitioner - original plaintiff, neither he nor any of his family members have ever executed such an agreement to sale on 28/12/2005, and therefore, such an agreement to sale was without possession of the suit property. According to the case of the petitioner - original plaintiff, since no further action is initiated since date of agreement to sale dtd. 28/12/2005 till today, it stands automatically cancelled, and therefore, a relief is claimed in the plaint that the petitioner - original plaintiff be declared to be the owner of the suit property. However, alongwith the plaint, the petitioner - original plaintiff produced list of documents vide Exh.3, which includes disputed mortgage deed with possession of the suit property claimed to have been executed by the petitioner - original plaintiff in favour of the Respondent - original defendant, without there being any averment in respect of the said mortgage deed in the plaint. On filing of the suit and service of summons to the Respondent - original defendant, Exh.5 application came to be determined and Respondent - original defendant was restrained from selling, alienating or constructing over the suit land till final conclusion of the suit. The said order passed below Exh.5 was challenged before the appellate Court and the said order came to be modified restraining the Respondent - original defendant, in any manner, to deal with the suit property and the appellate Court directed status-quo to be maintained in respect thereof by both the sides. Against that order, this petition under Article 227 of the Constitution of India has come to be filed.