JUDGMENT:

1. By way of filing this petition under Articles 226 and/or 227 of the Constitution of India, the petitioner who is the plaintiff in the Special Civil Suit No.28 of 2015 pending before the Principal Civil Judge, Bardoli, has sought for the following relief:

“(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordship may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction to quash and set aside the order dated 21/08/2018 rendered by the Principal Senior Civil Judge, Civil Court, Bardoli below Exh­80 in Special Civil Suit No.28/2015 and further be pleased to allow the application Exh­80 by allowing the amendment in the plaint;

(C) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to stay further proceedings of Special Civil Suit No.28/2015 pending before the Ld. Principal Senior Civil Judge, Bardoli.

(D) Your Lordship may be pleased to pass such other and further reliefs as may be deemed just and proper in the interest of justice”.

2. The brief facts of the case of the petitioner-plaintiff is that he has filed the Special Civil Suit No.28 of 2015 before the Civil Court, Bardoli for declaration and permanent injunction against 3 defendants who are respondents herein. That the plaintiff and the defendant No.1 are the real brothers and defendant No.1 has shifted to Panama for service and the plaintiff was looking after the ancestral property. It is alleged that defendant No.2 has instigated the wife of defendant No.1 and caused interference in the family matter. It is the say of the plaintiff that the Suit property which is described in Para­2 of the plaint are jointly owned by the plaintiff and defendant No.1. It is alleged that the defendant no.1 and his wife had came back to India for social purpose and at that time exerted pressure and declared that he had partitioned his share and also made mutation entry no.2985 in the revenue record. It is alleged that no procedure was taken out thereof by the said defendant with respect to land came into the share of the plaintiff. It is also contended that he has filed the Suit for cancellation of agreement dated 29.5.2013 and also sought declaration and injunction.

2.1 That the defendants had appeared in the Suit and resisted the same by filing written statement vide Exh­15. According to the plaintiff, it is the stand of the defendants that the partition has taken place in view of the agreement dated 29.5.2013 and the defendants have taken the possession of their share of the property and also mutated their names in the revenue record. It is alleged by the plaintiff that he has moved an application for interim injunction Exh­5 however that application was rejected vide order dated 4.2.2017. According to him, the document produced by him at Mark­3/21 is alleged to have executed between the heirs of Dhansukhbha Naranbhai Aahir – Smt. Jagrutiben Dhansukhbhai Aahir on one hand and the heir of Ramanbhai Naranbhai Aahir­ Pannaben Ramanbhai Aahir on the another hand. According to the petitioner­ plaintiff, as the said document is not registered and it is on Rs.100/­ Stamp paper, it cannot be looked into. It is also contended that he moved an application under Section 80 for joining his own wife with others which include Jagrutiben wife of the appellant, Pannaben wife of Ramanbhai and son and daughter of Ramanbhai as defendant Nos. 4 to 7. He has also prayed to amend the plaint by inserting new para being 3A and 4A and Para 8(2)(A) and delete the alternative prayer. It is contended that the learned trial Court has dismissed this Application.

2.2 It is contended that the trial Court has not appreciated the fact and non­registration of the so called partitions and has also not considered the provisions of law and has ultimately rejected the application.

3. In the present matter, the affidavit­in­reply is filed by the original defenda