Immovable property can only be legally transferred through a registered deed of conveyance.

ORDER :

1. Heard learned advocate Mr. Rahulkumar V. Makwana for appellant and learned advocate Mr. Gaurav S. Mathur for respondent Nos. 1 and 2.

2. Upon joint request and consent of learned advocates for both the parties, this Appeal from Order is taken up for final hearing.

3. By way of this Appeal from Order, the appellant has prayed for the following reliefs:

“(A) Your Lordships may be pleased to admit and allow this appeal by quashing and setting aside the impugned order dated 13.12.2022 passed by the learned Principal Senior Civil Judge, Bhachau-Kachchh below application - Exhibit 5 preferred in Special Civil Suit No. 5 of 2021.

(B) xxx xx xxx.”

4. The brief facts leading to the present Appeal from Order are as under:

4.1 The appellant original plaintiff has filed Special Civil Suit No. 5 of 2021 for relief of declaration, cancellation of the WILL dated 15.10.2019 and a registered sale deed dated 24.11.2020 and other ancillary reliefs of permanent injunction.

4.2 The original plaintiff moved an application below Exhibit-5 praying for relief of temporary injunction seeking relief of restraining the defendants from transferring and constructing any construction over the suit land, which is situated at land bearing Revenue Survey No. 342 of village Ambaliyara, Taluka Bhachau-Kachchh. The injunction application below Exhibit-5 of the present appellant came to be dismissed by the learned Principal Senior Civil Judge, Bhachau-Kachchh on 13.12.2022. Against which, present Appeal from Order is preferred by the appellant before this Court.

5. Learned advocate for the appellant has submitted that the plaintiff has filed the suit for cancellation of registered sale deed, declaration and cancellation of the WILL dated 15.10.2019. It is submitted that the plaintiff has acquired right, title and interest in the suit property by virtue of registered WILL dated 03.07.2013, which was executed by one Ladha Hamira Hira Chhanga and the suit property was bequeathed to present appellant and one Velji Premaji Harijan.

5.1 Learned advocate for the appellant has submitted that the WILL dated 15.10.2019 is sham and bogus WILL and the same is neither registered nor notarized WILL. Hence, the original defendant No. 1 has not acquired any right, title and interest in the suit property by virtue of the said Will. It is further submitted that the appellant is the owner of the land by virtue of registered WILL dated 03.07.2013. It is further submitted that the learned trial Court has committed a grave error in rejecting the application below Exhibit-5.

6. Per contra, learned advocate for the respondent No. 2 has supported the decision of the learned trial Court in rejecting injunction application. Learned advocate for the respondent No. 2 has submitted that there is no prima-facie case in favour of the appellant-original plaintiff and the learned trial Court has rightly held that in absence of prima facie case, balance of convenience and irreparable loss, no equitable relief can be granted in favour of the plaintiff.

7. It is further submitted that the deceased Ladha Hamira Hira Chhanga had expired on 02.12.2019 and before that he had executed a WILL in favour of the respondent No. 1 on 15.10.2019, whereby the property was bequeathed to respondent No. 1 and one Velji Premji Harijan. After the death of Ladha Hamira Hira Chhanga, name of the respondent No. 1 was mutated, pursuant to the said WILL. Hence, it is submitted that WILL dated 15.10.2019 has been implemented in favour of respondent No. 1. Thereafter, respondent No. 1 by virtue of registered sale deed dated 24.11.2020, sold the property in question to the respondent No. 2 herein and since then, respondent No. 2 is the holder of valid title.

8. It is further submitted that it is a settled principle of law that no injunction will be granted against the true owner. It is further submitted that the learned trial Court has rightly considered the factual aspects and unless and until the same are contrary to the reco