Point of Law: Multiplicity of proceedings is also one of the weighty considerations and becomes part of facet of balance of convenience, for, if the disputed property is allowed to be transferred from one hand to another and/or allowed to be subjected to induction of third party rights, the parties to the proceedings will have to indulge into multiple legal proceedings in future

ORDER :

Heard learned senior advocate Mr. Anshin Desai assisted by learned advocate Mr. Jay Thakkar for the appellants, learned senior advocate Mr. I.H. Syed with learned advocate Mr. Chirag Upadhyay for respondent Nos.1 and 2, learned senior advocate Mr. Dhaval Dave with learned advocate Mr. Mrugen Purohit for respondent No.3, and learned advocate Mr. Digant Kakkad with learned advocate Mr. Kishan Dave for respondent No.4.

2. This Appeal From Order as initially preferred, was against common order dated 19th November, 2019 passed by learned 4th Additional Senior Civil Judge, Anand, whereby application Exh.5 and application Exh.35 filed by the appellants-plaintiffs in their Special Civil Suit No.82 of 2018 came to be dismissed. Application Exh.5 was for interim injunction to restrain the respondents-defendants from transferring, alienating or encumbering the suit properties.

2.1 After filing of application Exh.5 on 25th July, 2018 along with the institution of the suit, the plaintiffs moved another application Exh.35 on 02nd August, 2019, styled to be under Section 151 of the Code of Civil Procedure, 1908 wherein the prayer was made to restrain the defendants from constructing and changing nature of the suit property. It was the case for moving such application that despite long passage of time, the defendants except one defendant, did not file their written statement and on the other hand, the construction over the suit property was started in collusion to create new equities.

3. The parties to the suit are family members. Plaintiff Nos.1 and 2 and defendant No.1 are real brothers, defendant No.2 happens to be the wife of defendant No.1 and defendant No.4 is the mother. The suit was instituted on 25th July, 2018 which was for the relief of declaration that registered sale deed dated 09th October, 2017 in favour of defendant No.3 was null and void and not binding to the appellants-plaintiffs. The prayer was made to direct defendant No.3 to execute registered sale deed in favour of plaintiff Nos.1 and 2 for 500 sq. mtrs. of land each out of total 1500 sq. mtrs. The partition was claimed of the suit land to the extent of one-third in favour of each brother-the plaintiffs and defendant No.1. In addition to above prayers, damages were also prayed for. A prayer for permanent injunction was also made against the defendants not to transfer or create encumbrance over the suit land.

3.1 As could be gathered from the plaint, the suit property is described in paragraph 2 of the plaint was an open land admeasuring 1500 sq. mtrs. located on the East of 2384 sq. mtrs. land falling on the Southern side of Final Plot No.69 Paiki in Town Planning Scheme No.4 (Anand).

3.2 It is the case of the plaintiffs that defendant No.1 was the elder brother, acting as Karta of the Hindu Undivided Family of the father-husband of defendant No.4. It was stated that out of total 1500 sq. mtrs. of land above, 300 sq. mtrs. of land was sold by its original owner one Miteshbhai Shantilal Patel to defendant No.1 for consideration of Rs.04,90,000/- which was paid by two cheques drawn from the account of Anand Mercantile Co-operative Bank. It is the further case that the remaining 1200 sq. mtrs. of land was agreed to be sold to defendant No.1 for Rs.24,00,000/- and on the same day, that is, 23rd February, 2006, agreement to sell was executed.

3.3 The plaintiffs stated that the agreement to sell in respect of said 1200 sq. mtrs. of land was entered into in the name of defendant No.1 only as he was trusted by all, though the purchase was on behalf of the joint family. At the time of execution of the agreement to sell, earnest money of Rs.05,00,000/- was paid. It was averred that the total amount was paid by two cheques of Rs.20,000/- each dated 22nd February, 2006 and cheques for Rs.02,00,000/-, Rs.01,28,000/- and Rs.01,20,000/- respectively, all dated 23rd February, 2006, drawn from the joint family business accounts in the Anand Mercantile Co-operative Bank. The details