PATEL BABUBHAI DHULABHAI Vs. DHARMENDRA CHATURBHAI PATEL

JUDGEMENT

(1.) The present Appeal from Order under Order 43 Rule 1 and Section 104 of the Code of Civil Procedure is filed for the purpose of challenging the legality and validity of an order dated 14.12.2018 passed by the learned 8th Additional Senior Civil Judge, Gandhinagar, below Exh.5 refusing the temporary injunction as prayed for by the plaintiff.

(2.) At the outset, when the matter is taken up for hearing, learned advocate Mr.Sunilsinh J.Chauhan for learned advocate Mr.Arpit P.Patel for the appellant has submitted that there is a clear error on the part of the learned trial Judge in passing the order. It has also been submitted that banakhat is prior in point of time and sizable amount is already been paid, still however, the sale deed has not been executed. It has further been submitted that simply because respondent Nos.5 to 11 have become registered sale deed holder, the injunction relief should not have been refused, more particularly, when there is a clear assertion reflecting in written statement in paragraph No.3, which is projected on page 18 of the paper book compilation. It has further been submitted that the execution of banakhat mark upon 3/13 has already been admitted and in that way of matter when document is admitted by the respective parties there was hardly justifiable reason for refusing the injunction. Resultantly, such material error in exercising of jurisdiction deserves to be corrected. Learned advocate for the appellant has submitted that he is ready and willing to deposit the balance amount of sale consideration and if the injunction is refused then serious prejudice will cause to him. No other submissions have been made.

(3.) Having heard learned advocate for the appellant and having gone through the material on record, it appears clearly that the respondent Nos.5 to 11 have become the registered sale deed holder by virtue of transaction in question, which is not in dispute with respect to very same property, they have become bona fide purchaser of land in question with full consideration. As a result of this, to prevent registered holder of the property from lawful enjoyment is tantamount to allowing the speculative move of the original plaintiff. It further appears that even banakhat undisputedly is executed by only one of the co-owners and rest of the co-owners have not singed the banakhat, which is in question produced mark 3/13 and after all over examination, the learned trial Judge has found that there is some doubt with regard to execution of banakhat. In that view of the matter, simply because some amount at the time of agreement to sell paid, the trial court ought to have granted injunction against the registered sale deed holder. The observations contained in an order since are with application of mind, the Court would like to reproduce the same hereinafter: