Point of Law: Appellate Court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating the adjudication of an application like one under Order 39 Rule 2A of the CPC. It is a settled principle of law that an appeal against exercise of discretion is said to be an appeal on principle

JUDGMENT :

1. This appeal under Section 104 read with Order 43 Rule 1(R) of the Civil Procedure Code, 1908 (for short “the CPC”) is at the instance of the original plaintiff and is directed against the order passed by the Principal Senior Civil Judge, Ahmedabad dated 09.10.2015 below Application, Exh.211 in the Special Civil Suit No.66 of 1992. The application, Exh.211 was preferred by the plaintiff under the provisions of Order 39 Rule 2A of the CPC and the same came to be rejected by the Court below by way of the impugned order.

2. For the sake of convenience, the appellant herein shall be referred to as the original plaintiff and the respondents herein shall be referred to as the original defendants.

3. The facts giving rise to this appeal from order may be summarized as under:

3.1 The dispute pertains to the land bearing Survey Nos.126, 191/2, 197, 349, 1139, 1241/2, 1245/1, 267 and 218 admeasuring about 9 Acres and 49 Gunthas, situated at Vejalpur, Ahmedabad. The original owner of the land in question was one Bai Saraswatiben (original defendant No.1, since deceased, now substituted by her son as the legal heir). Late Bai Saraswatiben executed two sale deeds dated 27.10.1964 without possession with respect to the land in question in favour of five individuals. The sale deeds were registered bearing Nos.8925/1964 and 8927/1964.

3.2 On 04.03.1965, the purchasers formed a partnership in the name of M/s. Arbuda Corporation.

3.3 On 07.09.1965, M/s. Arbuda Corporation was registered. Later, the land in question was made a part of the asset of the partnership.

3.4 M/s. Aurbuda Corporation entered into a development agreement dated 07.12.1972 with M/s. Shree Ganesh Land Organiser (defendant No.2 in the suit).

3.5 M/s. Shree Ganesh Land Organiser came to be registered on 18.06.1974 as a Society under the provisions of the Gujarat Cooperative Societies Act, 1961. A certificate of registration dated 18.06.1974 was issued by the Addl. District Registrar, Cooperative Societies, Ahmedabad.

3.6 M/s. Arbuda Corporation executed an agreement to sell dated 15.09.1975 in favour of the defendant No.2 in respect of the suit land.

3.7 Pursuant to an application dated 16.11.1976 made by the defendant No.2, the Collector granted permission to the defendant No.2 to purchase the suit land.

3.8 The defendant No.1 entered intro an agreement to sell dated 03.07.1980 for the sale of the said land in favour of the defendant No.2 and Keshavbhai Chhababhai Patel HUF. One another agreement to sell dated 15.04.1982 was executed by the defendant No.1 in favour of the defendant No.2 and M/s. Shree Ganesh Housing Corporation. Upon execution of such agreement, a sum of Rs.50,000/- was paid to the defendant No.1.

3.9 An agreement to sell dated 01.04.1987 was executed by the defendant No.1 in favour of the plaintiff herein in respect of the suit land. The said agreement came to be registered at Serial No.5239 in Book No.1 of the Registrar, Ahmedabad.

3.10 The defendant No.1 further executed an irrevocable general power of attorney dated 01.04.1987 in favour of one Pradipbhai Madhubhai Patel in respect of the suit land.

3.11 The defendant No.1 executed an agreement to sell dated 01.05.1991 with possession in favour of the defendant No.2. In the said agreement to sell, the defendant No.1 acknowledged the two registered sale deeds dated 27.10.1964 bearing Registration No.8925 of 1964 and 8927 of 1964 respectively in favour of the purchasers. The defendant No.1 also confirmed the agreement to sell by M/s. Arbuda Corporation in favour of the defendant No.2 dated 15.09.1975. At the time of execution of the said agreement to sell, the defendant No.2 paid Rs.15,000/- and Rs.5,000/- respectively vide two cheques drawn in favour of the defendant No.1.

3.12 The defendant No.1 entered into a supplementary agreement dated 01.05.1991 with the defendant No.2. By virtue of the said agre