The Trial Court's discretionary power in granting or refusing temporary injunction is to be exercised in accordance with sound judicial principles, considering the prima facie case, balance of convenience, and irreparable loss or injury caused to the parties.

JUDGMENT :

1. By way of present appeal, the appellant – original defendant no.9 has challenged the impugned order dated 26.09.2018 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Olpad (hereinafter be referred to as “the Trial Court”) below application Exhibit 5 in Special Civil Suit No.428 of 2016, whereby the application came to be partly allowed.

2. With the consent of learned counsel appearing for both the sides, the appeal is taken up for final hearing.

3. Brief facts of the present case are that the appellant has purchased the subject parcel of land by way of registered sale deed from one of the co-owners of the land and the co-owner has entered into sale transaction with the appellant and sale deed executed on 02.06.2016 and after paying full consideration the subject parcel of land was sold to the appellant. It is the case of the appellant that though he purchased the subject parcel of land, the respondent no.1 – original plaintiff has filed the suit for specific performance of the unregistered agreement to sell entered into between the legal heirs of the original land owner somewhere in the year 1980. But till date, the original plaintiff has not claimed the specific performance by way of institution of any proceedings for almost 35 years. Even he has neither issued any legal notice nor challenged any revenue entry subsequent to the date of the death of the original land owner of the coparcenor of the subject land.

3.1 That the respondent no.1 – original plaintiff filed Special Civil Suit No. 428 of 2016 with application at Exhibit 5 before the learned Principal Senior Civil Judge and Additional Chief Judicial Megistrate, Olpad. The said application came to be objected by the present appellant by filing written statement/reply.

3.4 After hearing the parties, the Trial Court partly allowed the application at Exhibit 5 vide order dated 26.09.2018.

3.5 Being aggrieved and dissatisfied with the impugned order, the appellant has filed the present appeal.

4. Heard Mr.Amit Thakkar, learned counsel appearing for the appellant and Mr.K. K. Trivedi, learned counsel appearing for respondent no.1.

5. Mr.Thakkar, learned counsel appearing for the appellant has submitted that the Trial Court has committed an error by partly allowed the application at Exhibit 5. He has submitted that the original plaintiff has not produced anything to show that any efforts was made by the plaintiff for specific performance of the alleged agreement to sell of 1980 for almost 35 years. It is submitted by Mr.Thakkar that original owner Khandubhai Nagarjibhai expired in 1975 and the name of his legal heirs Pramodbhai Khandubhai, Harishbhai Khandubhai and Gajraben Wd/o. Khandubhai were mutated in the revenue record vide mutation entry No.3904 in the year 1977 and thus, Pramodbhai Khandubhai was not sole owner of the subject land in the year 1980 and, therefore, the claim of the original plaintiff is not tenable because the owners of the said property have admittedly not executed the alleged agreement to sell. It is submitted by Mr.Thakkar that the alleged agreement relied on by the original plaintiff is false and fabricated and a complaint in this regard filed against the plaintiff and further alleged agreement to sell is neither notarized nor registered before the competent authority. It is submitted that the plaintiff has not taken any steps for more than three decades for its performance. He has submitted that the appellant is the owner of the suit property which came to be purchased by him by way of registered sale deed No.9958 dated 02.06.2016. He has submitted that from 1980 till 2016, as and when names of the co-owners’ appeared in the revenue record expired, the mutation entry of heirship is mutated and over a period of time, several mutation entries are being mutated and ultimately, defendants no.1 to 8 were being reflected as the owners. It is submitted that during all these years, no objection was raised ag