ORAL ORDER

1. Heard learned advocate Mr. S.P. Majmudar for the appellant.

2. The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, (for short hereinafter referred to as ‘the Code’) challenging the judgment and order dated 07.01.2023 passed by learned the 26th Additional Senior Civil Judge, Vadodara below Exhibit-37 in Special Civil Suit No.55/2021, whereby the plaint of the present appellant came to be rejected.

3. Notice was issued to the respondents by the Coordinate Bench of this Court vide order dated 06.06.2023, which was duly served to the respondents and the service affidavit of one Mr. Chandreshkumar Parmar dated 03.07.2023 is placed on record which suggests that all the respondents have been duly served. Though served, none appeared for the respondents.

4. The brief facts leading to the present appeal in a nutshell are as under:-

4.1 The plaintiff filed the Special Civil Suit No.55/2021 against the present respondents for an agricultural land bearing Revenue Survey No.930 Khata No.152, T.P. Scheme No.60 of Gotri, Final Plot No.111 of the District Vadodara,Village Gotri. The said suit was for a relief of cancellation of registered sale deed being Registration No.566 dated 06.04.2018. The cancellation of registered sale deed being null and void as the said registered sale deed was executed by the present respondent Nos.1 to 4 in favour of the respondent No.5. The aforesaid suit was filed on 01.04.2021.

5. Learned advocate for the appellant has submitted that the appellant is the owner and is in possession of the suit property by virtue of a registered sale deed dated 01.08.2011 executed by respondent Nos.1 to 4 in favour of the present appellant. It is further submitted that after the execution of the aforesaid registered sale deed dated 01.08.2011, the present appellant filed a Regular Civil Suit No.66 of 2015 claiming the ownership rights on the basis of adverse possession which is pending. It is further submitted that during the pendency of the said suit, the respondent Nos.1 to 4 executed a registered sale deed dated 06.04.2018 in favour of the respondent No.5. It is further submitted that the respondent Nos.1 to 5 are in collusion with each other and with a view to snatch away the suit property, the registered sale deed was executed. Appellant has pleaded cause of action in paragraph No.9 of the plaint. Thereafter, the present respondent Nos.1 to 4 filed a Special Civil Suit No.132 of 2019 against the present appellant for a relief of cancellation of registration of sale deed dated

01.08.2011, the said suit is still pending. It is further submitted that criminal proceedings were lodged by the original owner against the present appellant. The present appellant was acquitted on 31st January 2023 by the learned 9th Chief Judicial Magistrate, Vadodara from the charges.

5.1 It is further submitted that respondent Nos.1 to 4 filed Exhibit-37 by invoking the jurisdiction of Order VII Rule 11 (a) and (d) read with Sections 94 and 151 read with Order 6 Rule 16 of the Code.

5.2 Learned advocate for the appellant has further submitted that the learned trial Court has committed an error in granting the application below Exhibit-37. It is further submitted that in the plaint, the appellant has specifically averred a contention that the appellant has filed a Regular Civil Suit No.66 of 2015 before the learned Civil Judge, Senior Division, Vadodara for a relief of title under adverse possession and the said suit is pending. However, the learned trial Court has erred in observing that the plaintiff has suppressed facts in the plaint.

5.3 It is further submitted that the learned trial Court has committed an error by relying upon the contentions raised in the Written Statement. The reference can be found in the impugned order being at paragraph No.11. It is further submitted that the Regular Civil Suit No.66 of 2015 was filed on a different cause of action from the present Special Civil Suit No.55 of 2021.