PATEL AMBALAL BABARBHAI Vs. THAKOR PRAHLADJI RANCHHODJI

JUDGEMENT

(1.) TWO applications, being Exhibit ­ 5 and Exhibit ­ 25 were preferred in the Court of learned Civil Judge, (SD) camp at Kalol in Special Civil Suit No.96 of 2006. The first one was for protection of possession and injunction against the alienation of the suit property and in the second one, the plaintiff came out with a grievance of having been dispossessed of the suit property and, therefore, mandatory injunction was sought which came to be declined by the trial Court. Application Exhibit ­ 5 was also rejected. The respondent ­ original plaintiff, therefore, preferred Civil Misc. Appeal No.70 of 2007 against both the orders. However, during the course of hearing, the challenge to the order below Exhibit5 was given up with a liberty to prefer a separate appeal, by furnishing appropriate Pursis before the lower appellate Court. Thus, the appeal against application Exhibit ­ 25 was heard and on consideration of the facts and circumstances of the case, lower appellate Court, after finding that the plaintiff was unable to make out a case of being in possession of the suit property prior to dispossession, partially allowed the appeal. However, it also directed the maintenance of statusquo and that part of the order has aggrieved the petitioners ­ original defendants. Hence, this petition.

(2.) HAVING considered the arguments advanced by the learned Counsel for both the parties on limited aspect i.e. whether, having failed in application Exhibit ­ 5 wherein the injunction against alienation of the suit property was sought and having accepted the order of rejection of the said application, plaintiff ­ appellant ­ respondent herein was entitled to the reliefs as contained in application Exhibit­5 in absence of appeal?

(3.) LEARNED Counsel for the respondent would strenuously urge that the lower appellate Court considered merits of whole case and found that there was a prima facie fraud in execution of the saledeeds and that after holding that such issues were required to be determined in the suit, passed a discretionary order of maintenance of statusquo and this Court under Article 227 of the Constitution may not interfere.