An agreement to sell does not confer title or a right to possession. A temporary injunction cannot be granted against a rightful owner of property in favor of a party who fails to establish a prima facie case or plead readiness and willingness to perform the contract.

JUDGMENT :

DEVAN M. DESAI, J.

1. The present Appeal from Order is filed by the appellant original defendant No.5 assailing the judgment and order dated 12.05.2023 passed in Special Civil Suit No.9 of 2020 by learned Additional Senior Civil Judge, Sanand, Ahmedabad (Rural).

2. Heard learned Senior Advocate Mr. Prakash Jani assisted by learned advocate Mr. Ankit D. Desai and learned advocate Mr. Rushi A. Barot for the appellant and learned advocate Mr. Dhruvik K. Patel for the respondent No.1. Though served, none appeared for respondent Nos.2 to 5.

3. The brief facts of the case are as under:-

3.1. It is the case of the appellant-original defendant No.5 that appellant and respondent Nos.2 to 5 are the family members and respondent No.2 is the elder son of the respondent Nos.3 and 4. Respondent No.3 along with other family members boycotted the respondent No.2 since 2016. Respondent No.2 without right, title or interest in the land bearing Survey No. 440, admeasuring 21426 sq. mtrs situated in the sim of Village Shela Ta. Sanand, District-Ahmedabad (suit land), executed agreement to sell on 07.05.2019. In the year 2020, respondent No.1 - plaintiff filed suit seeking declaration, injunction and specific performance of the alleged agreement to sell dated 07.05.2019. Pending the suit, appellant-herein purchased the suit land from respondent No.3. Thereafter, respondent No.1-original plaintiff has challenged the sale deed executed in favour of the appellant seeking amendment in the plaint. Learned trial Court allowed the application for interim injunction. Being aggrieved and dissatisfied with the impugned order, appellant-original defendant No.5 is before this Court to challenge the order dated 12.05.2023 passed below Exhibit-5 application.

4. Learned Senior Advocate for the appellant has submitted that the suit land was initially owned in the name of Haribhai Bababhai in the year 1977-1978. Pursuant to a partition deed dated 22.12.2000, the suit land came in the share of defendant No.2 and a mutation Entry No.2369 was registered in the Revenue Record. Defendant No.2 thus, became the exclusive owner of the suit land. As defendant No.1 was acting against the interest of the family members, defendant No.2-father, boycotted defendant No.1 since 2016 and defendant No.1 was not in the contact of defendant Nos.2 to 5. A public notice dated 06.07.2016 came to be issued in Daily Newspaper intimating the public at large that defendant No.1 has been removed from the properties of defendant No.2. Thereafter, on 14.07.2020, defendant No.5-present appellant purchased the suit land from defendant No.2 by a registered sale deed and became the owner and occupier of the land in question. It is further submitted that the agreement to sell dated 07.05.2019 is without any authority of defendant Nos.2 to 5 and is not binding to defendant Nos.2 to 5. It is therefore, submitted that no injunction can be granted against a true owner simply on the basis of an illegal agreement to sell. Defendant No.1 has not filed any Written Statement and has not contested the suit.

4.1. Learned Senior Advocate for the appellant, at the outset, submitted that plaintiff-respondent No.1, in the injunction application, prayed for the reliefs that the defendants be restrained from transferring, alienating or creating charge over the suit land. Learned trial Court granted injunction application Exhibit-5 and in absence of averment that plaintiff is in possession, directed defendants not to disturb possession of plaintiff and further directed plaintiff to deposit 50% of the total sale cons