RANJANBEN NANALAL UDANI Vs. BABUBHAI GHELABHAI AJANI

JUDGEMENT

(1.) Heard learned advocate Mr.Sandip Bhatt For the Petitioner and learned advocate Mr.Jenil Shah For the Respondent.

(2.) The petitioner who is the original plaintiff, has filed the present petition against judgment and order dated 04th February, 2014 passed by learned 9th Additional District Judge, Rajkot. Thereby the lower appellate court allowed Civil Miscellaneous Appeal No.26 of 2012, in turn, set aside interim order dated 22nd February,2012 passed by learned 2nd Additional Senior Civil Judge, Rajkot, below Exh.5 in Civil Suit No.179 of 2010.

(3.) The trial court passed interim order directing both the parties to maintain status quo, which came to be vacated by the lower appellate court. This Court issued notice in the petition on 24th March, 2014 without passing any further order. 3. 1. The suit of the petitioner - plaintiff was for declaration that the defendant did have any right or share in the suit property. A permanent injunction was also prayed for to restrain the defendant from interfering with the possession of the plaintiff. The case of the plaintiff in the suit was that the land bearing Revenue Survey No.15 of Village Gavridad, Taluka Rajkot, was converted into nonagricultural and out of which, Plot No.29 was purchased by the plaintiff by registered sale deed dated 07th August, 1990 from one Raiya Nathu Hirani acting through his power of attorney holder one Satishkumar Shantilal. The plaintiff claimed on that basis that he was in possession and occupation of the said land having become owner thereof. In the said suit, interim injunction was prayed for by filing Exh.5 application seeking protection of the possession and to restrain the defendant from interfering with the possession. 3. 2. The defendant filed written statement as well as reply to the Exh.5 application and contended that the sale deed executed in favour of the plaintiff was illegal as it was executed at the point of time when the land was converted into nonagriculture. It was the case of the defendant that the plaintiff created a false power of attorney on the basis of which, the sale transaction was effected. According to the defendant, he had also purchased the very land being Plot No.29 by registered sale deed dated 26th May, 2012 from another power of attorney of the same vendor. 3. 3. The trial court, for the reasons recorded in the order below Exh.5, granted the injunction. The lower appellate court however vacated the same by supplying reason that the sale deed in favour of the plaintiff was surrounded by suspicious circumstances whereas sale deed in favour of the defendant, though was subsequent in point of time, it was genuine. With such findings recorded, the interim injunction was vacated. It was also reasoned by the lower appellate court that the plaintiff had challenged in the civil suit the subsequent sale deed in favour of the defendant.