Point of Law : An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material.

ORDER :

1. By preferring this petition, the petitioner, who is the original plaintiff in Special Civil Suit No. 93 of 2009 and appellant in Misc. Civil Appeal No. 147 of 2011, has challenged the impugned order dated 23rd March, 2017 passed by the Principal District Judge below Exhibit:15 in Misc. Civil Appeal No. 147 of 2011 and impugned order dated 7th May, 2011 passed by the learned Additional Senior Civil Judge, Vadodara below Exhibit:5 in Special Civil Suit No.93 of 2009.

2. Short facts of the present case may be summarized as under:

2.1 As per the averments made by the petitioner in Special Civil Suit No. 93 of 2009 filed against the respondent no. 1, an agreement of mortgage was executed between them and Rs. 50,000/- was paid by the petitioner to respondent no. 1 in respect of land i.e Survey No. 235/3 admeasuring 0.29 - 34 situated in Village ‘Serkhi’ of District Vadodara as per the terms of the agreement dated 24th April, 2001.

2.2 It was further averred that possession of land was handed over to the petitioner by the respondent. no. 1 for the next five years. It was further contended that Rs. 3,02,000/- was paid by the petitioner to the respondent no. 1 and another written agreement - conditional sale deed was exhibited on 7th October, 2005. As per the condition in the second agreement, if the defendant would not repay the amount, then he will execute sale deed in favour of the petitioner and respondent no. 3. After the span of 2 years, respondent no.1 failed to repay the amount and to execute the sale deed, and therefore, the petitioner filed Regular Civil Suit No. 1203 of 2008 before the Civil Court, Vadodara on 23rd October 2008 with a prayer to restrain the respondent no. 1 from executing sale deed and other instruments in favour of the third party. Interim Application for injunction Exhibit: 5 was preferred by the petitioner which was rejected by learned Additional Senior Civil Judge in Regular Civil Suit No. 1203 of 2008 vide order dated 30th August, 2010. Meanwhile, respondent no. 1 sold disputed property to respondent no. 2 by way of registered sale deed dated 23rd October, 2008. The petitioner was threatened by the respondent no. 3 on 04.02.2009 and therefore, another suit was filed by the plaintiff being Special Civil Suit No. 93 of 2009 because of new cause of action for protection of his possession and quashing the sale deed dated 23rd October 2008, executed by the respondent. no 1 in favour of respondent no. 2. Application for interim injunction was preferred by the petitioner vide Exhibit:5 which was also rejected by the learned Additional Senior Civil Judge by order dated 7th May 2011. The petitioner preferred Misc. Civil Appeal No. 197 of 2011 before the learned Principle District Judge which came to be rejected vide order dated 21st March, 2017. Being dissatisfied with the impugned order passed by the Principal District Judge, Vadodara, in Misc. Civil Appeal No. 147 of 2011, the petitioner has approached this Court.

3. Heard learned advocates for the respective parties.

4. It is submitted by learned advocate appearing for the petitioner that the impugned order passed by the Trial Court is contrary to the facts and law. It is further submitted that the petitioner has paid Rs. 3,52,001/- towards conditional sale deed – mortgage dated 7th October, 2005 and however, on technical ground of unregistered documents at very early stage of the suit before recording evidence, prayer was rejected by the Court below. It is further submitted that facts of the possession of this suit premises lying with the petitioner were not properly appreciated by the Court below. It is further submitted that at the time of executing first mortgage deed i.e. on 24h of April, 2001, plaintiff/petitioner is in possession in of the suit property. It is further submitted that Panchnama prepared by the Court Commissioner in Regular Civil Suit No. 1203 of 2008 clearly established the possession of the plaintiff which was erroneously not cons