AMBABEN Vs. BALDEVBHAI BECHARSINH VAGHELA

JUDGEMENT

(1.) PRESENT Appeal from Order under Order 43 Rule 1 (r) of the Code of Civil Procedure has been preferred by the appellant herein-original plaintiff to quash and set aside the impugned order dated 10. 08. 2009 passed by the learned Chamber Judge, City Civil Court, Ahmedabad passed below Notice of Motion Exh. 6/7 in Civil Suit No. 67 of 2009, by which the learned Judge has rejected the said Notice of Motion.

(2.) THAT the appellant herein-original plaintiff has instituted Civil Suit No. 67 of 2009 in the City Civil Court at Ahmedabad for cancellation of sale deed executed by the original defendant Nos. 1 and 2 (original owners) in favour of defendant No. 3 on dated 14. 11. 2006 vide Registration No. 7698 and also for cancellation of the registered sale deed executed by the original defendant No. 3 in favour of the defendants No. 4 to 8 on dated 19. 6. 2008 vide Registration No. 5781. The appellant-plaintiff has also prayed for a relief of permanent injunction alleging inter alia that the original defendants No. 1 and 2 have executed one agreement to sell in favor of the deceased husband of the plaintiff and the deceased husband of the plaintiff paid full sale consideration and possession receipt was executed in favour of the deceased husband of the plaintiff on dated 3. 8. 2004 and since then the deceased husband of the plaintiff has become the absolutely owner, occupier and in possession of land in question. It is further averred in the plaint that her husband died on 17. 02. 2008 and the plaintiff has inherited the said disputed suit land in question. It is averred in the plaint that inspite of above transaction with the deceased husband of the plaintiff the defendants No. 1 and 2 have executed one sale deed in favour of the defendant No. 3 with respect to the land admeasuring 3982 sq. yards by registered sale deed dated 14. 11. 2006 and thereafter the defendant No. 3 has executed the sale deed in favour of the defendants No. 4 to 8 illegally. In the said suit, the appellant -plaintiff took out the Notice of Motion below Exh. 6/7 restraining the defendants No. 4 to 23 from transferring / alienating the disputed land in question in any manner whatsoever till the final disposal of the suit. That the learned Judge by impugned order dated 10. 08. 2009 rejected the said Notice of Motion by holding that the plaintiff has failed to establish the prima facie possession of the suit property and that the defendants are found to be in possession of the suit property and that the plaintiff has filed the suit only for injunction and plaintiff has never prayed for a decree of specific performance of the alleged agreement to sell executed by the defendants No. 1 and 2 in favour of the deceased husband of the plaintiff. Being aggrieved and dissatisfied with the impugned order passed by the learned Chamber Judge of the City Civil Court, Ahmedabad rejecting the Notice of Motion and refusing to grant any interim relief as prayed for, appellant-plaintiff has preferred the present Appeal from Order along with Civil Application for interim relief therein.

(3.) SHRI JT Trivedi, learned Advocate appearing on behalf of the appellant original plaintiff has submitted that the learned trial Court has materially erred in not granting the injunction as prayed for protecting the possession of the appellant. It is submitted that without even asking for any other relief either for specific performance and / or any other relief a suit for injunction only is maintainable. Therefore, it is submitted that when the appellant-original plaintiff is in possession of disputed land in question the learned trial Court ought to have granted injunction as prayed for. It is further submitted that even the learned trial Court ought to have granted the injunction restraining the defendants No. 4 to 23 from transferring / alienating the suit property in question during the pendency and final disposal of the suit.