IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/APPEAL FROM ORDER NO. 266 of 2018 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2018 In R/APPEAL FROM ORDER NO. 266 of 2018 ==========================================================

KANTIBHAI MOHANBHAI PATEL Versus BABUBHAI MOHANBHAI PATEL & ORS.

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Appearance:

MR JIGAR P RAVAL(2008) for the Appellant(s) No. 1 DEV D PATEL(8264) for the Respondent(s) No. 2 MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 6,7,8,9 MR DHAVAL DAVE, SR. ADVOCATE WITH MR JIGAR M PATEL(3841) for the Respondent(s) No. 3 MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2.1,2.2,2.3,2.4,2.5,2.6,5 RAHUL S SHAH(9701) for the Respondent(s) No. 4 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 05/08/2024

ORAL ORDER

1. Heard learned advocates for the respective parties.

2. Present Appeal from Order under Order 43 Rule 1(r) of CPC is filed challenging order dated 06.09.2018 passed below Exh.5 in Special Civil Suit No.59 of 2017, whereby, injunction application under Order 39 Rule 1 & 2 read with section 151 of CPC has been rejected with further direction that transfer of suit properties described in para 3(a) to (e) shall be subject to principle of lis pendence.

3. Being aggrieved by the order dated 06.09.2018 passed in injunction application, the plaintiff has filed present Appeal from Order.

4. Facts leading to filing of this Appeal from Order are as under :-

4.1. The appellant filed Special Civil Suit No.59 of 2017 against respondents for decree of declaration and permanent injunction and for cancellation of gift deed, sale deed and agreement to sale, power of attorney and decree. The appellant also moved application Exh.5 praying temporary injunction restraining present defendants from transferring and /or alienating and from creating any third party right over the suit property. Learned Trial Court vide order dated 06.09.2018 rejected the said application. Hence, present Appeal from Order.

5. Having heard learned advocates for both the sides, firstly, it is required to note relief claimed by the plaintiff in the suit (it is in Gujarati, for understanding it is translated in English), which is as under :-

"(A) Be please to pass such decree in favour of Plaintiff against the Defendent that said general power of Atorney executed by Defendent No. 1 in the name of me i.e. plaintiff, of the land measuring 11459 sq. mtr. of Block No. 93 paiki 2 of Nana Varachha which is in possession of the plaintiff and which is registered vide serial number 1247 dated 07.12.13 in Surat Sub-Registrar Office, as illegal, without free consent, non est and nullity, void and not binding on the Plaintiff.

(B) Be please to pass such decree in favour of Plaintiff against the Defendent that said gift deed executed by Defendent No. 1, who is the said power of attorney of the plaintiff, of the land measuring 11459 sq. mtr out of Block No. 93 paiki 2 of Nana Varachha which in possession of the plaintiff and which is registered vide serial number 415 dated 13.5.14 (dated 19.5.14) in Surat Sub-Registrar Office, as illegal, without free consent, null and void and not binding on the Plaintiff.

(C) Be please to pass such decree in favour of Plaintiff against the Defendent declaring that said sale deed registered vide serial number 11766 dated 05.11.15 in Surat Sub-Registrar Office through which the Defendent No. 1, through the rights of the said gift deed, sold to Defendent No. 2, land of final plot no. 55/2 admeasuring 1744 sq.mtr out of Final Plot No. 55/1 and Final Plot No. 55/2 of the land of Nana Varachha Block No. 93 paiki 2 admeasuring 11459 sq. mtr under the possession of the plaintiff, which was included in T.P.Scheme No. 38, Nana Varachha, as illegal, without free consent, null and void and not binding on the Plaintiff.

(D) Out of Block No. 93 paiki 2 of Nana Varachha in possession of the plai