JUDGMENT :

J.C. UPADHYAYA, J.

1. Admit. Service of notice of admission is waived by M/s. Mrugen Purohit, Hriday Buch, Premal Rachh and Ms. Anuja S. Nanavati, Ld. Advocates for respondent nos. 1, 2, 3 and 4 respectively.

The challenge in this appeal is to the order dated 7.12.2011 passed by the Ld. 13th Addl. Sr. Civil Judge, Surat [hereinafter referred to as ‘the trial Court’] below temporary injunction application Exh.5 in Special Civil Suit No. 432/2011, whereby the trial Court dismissed the said application. The appellant, therefore, is the original plaintiff and the 4 respondents are original defendants in the aforementioned suit and, therefore, for the sake of convenience, the appellant and the respondents shall be hereinafter referred to as the plaintiff and the defendants in this order.

2. The plaintiff filed the above suit seeking various reliefs, namely specific performance of an agreement to sell dated 11.7.2007 of the disputed land bearing city survey no. 331 situated in the outskirts of village Bamroli or in the alternative to award Rs. 1 crore by way of damages and further to set aside the registered sale-deed dated 12.11.2010 pertaining to the disputed land executed by the defendants nos. 1 to 3 in favour of the defendant no. 4 and further to declare that the respondent no. 3 had no right, title or interest in the disputed land and prayed for permanent injunction restraining the defendants from transferring or otherwise alienating the disputed land or to make any construction thereon.

2.1. In the said suit, the plaintiff filed application at Exh.5 seeking temporary injunction restraining the defendants from transferring or otherwise alienating the disputed property and from making any construction thereon till the pendency and final disposal of the suit as prayed in para 10 [A] in this application. As per initial order dated 29.8.2011 the trial Court issued urgent show cause notice to the defendants. After the defendants appeared before the trial Court and filed their written statements and replies to the application Exh.5 of the plaintiff, the trial Court, after considering the available material on record and after hearing submissions advanced on behalf of both the sides, passed the impugned order, whereby it was pleased to dismiss the said application and hence the plaintiff preferred this Appeal From Order in this Court.

3. Mrs. Ketty Mehta, Ld. Advocate for Mr. Manan A Shah, Ld. Advocate for the appellant herein, at the outset submitted that the impugned order passed by the trial Court is contrary to law and facts on record. It is submitted that by rejecting temporary injunction application Exh.5 filed by the plaintiff in the suit, virtually the trial Court has decided the whole suit. My attention was drawn to the copy of the agreement for sale dated 11.7.2007 whereby the defendant nos. 1 and 2, who are real brothers, agreed to sell the disputed land to the plaintiff and various terms and conditions laid down in that document came to be read over. It is submitted that since at the relevant time, the defendant no. 1 Bharatbhai was in South Africa, but on 13.8.2004 the defendant no. 1 had executed a document of power of attorney authorising the respondent no. 2 Shantilal to sell and dispose of the family property; the respondent-defendant no. 2 Shantilal signed said agreement to sell on his behalf and on behalf of the defendant no. 1 in the capacity as his power of attorney. It is submitted that the plaintiff agreed to purchase and the defendant nos. 1 and 2 agreed to sell the disputed property for the consideration amount of Rs. 31 lac. The day on which the agreement was executed, the plaintiff paid Rs. 50,000/- by cheque and Rs. 1,75,000/- by cash, in-all paid Rs. 2,25,000/- by way of advance to the defendant nos. 1 and 2 and in support thereof, the plaintiff has produced before the trial Court relevant evidence collected from his bank. Relying upon the relevant terms and conditions laid down in the agreement, it