R/SPECIAL CIVIL APPLICATION NO. 11870 of 2016 ==========================================================

PATEL VITTHALBHAI BABABHAI Versus HARIJAN NATHABHAI JEMABHAI & ORS.

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Appearance:

MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1 DECEASED LITIGANT for the Respondent(s) No. 1 DHRUVIN P BHUPTANI(8295) for the Respondent(s) No. 2 MALAV M MULANI(8844) for the Respondent(s) No. 1.1,1.2,1.3,1.4 ==========================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 03/03/2026

ORAL ORDER

1. The present petition is filed under Article 227 of the Constitution of India, 1950 by the present petitioner – original defendant No. 1 seeking following prayers:

“(A) The Hon’ble Court be pleased to admit and allow this petition.

(B) The Hon’ble Court be pleased to issue appropriate writ, order or direction for quashing and setting aside the impugned order dated 7-4-2016 passed by the Ld. Trial Court passed below Exh. 56 in RCS NO. 19 of 2012.

(C) The Hon’ble Court be pleased to pass appropriate order for granting the stay against the operation, implementation and execution of the order dated 7-4-2016 passed below Exh. 56 till the final disposal of the petition.

(D) The Hon’ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon’ble Court in the interest of justice.”

2. Rule returnable forthwith. Learned advocate Mr. Malav Mulani waives service of rule for and on behalf of respondent Nos.

1.1 to 1.4.

3. Heard learned advocate Mr. Gaurav Mehta for the petitioner, learned advocate Mr. Malav Mulani for respondent Nos. 1.1 to 1.4 on hybrid-mode and learned advocate Mr. Dhruvin Bhuptani for respondent No.2.

4. The brief facts of the case are as under:

4.1 It is the case of the petitioner that the petitioner is the owner of the agricultural land bearing Survey No. 231 pursuant to a registered sale deed dated 28.12.1970 executed by the mother of respondents herein in favour of the petitioner herein. After a period of 42 years of the execution of the said sale deed, respondent No. 2 – original plaintiff, filed a suit seeking cancellation of sale deed. Defendant No. 2 – present respondent No. 1 appeared in the suit and filed written statement and supported the case of the plaintiff – respondent No. 2 herein. After the closure of the evidence of both the sides, respondent No. 1 herein filed a counter-claim Exhibit – 49 which came to be rejected by the learned Trial Court. The order of rejection of counter-claim is upheld by the Co-ordinate Bench of this Court in Special Civil Application No. 15258 of 2015. It is further submitted that as on today, the Trial is at the stage of final submissions. It is submitted that the application under Order I Rule 10 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”) came to be filed by defendant No. 2 praying for transposition of defendant No. 2 as plaintiff No. 2. The application was not contested by the plaintiff. After considering the submissions, the learned Court below granted the application on 07.04.2016.

4.2 Being aggrieved and dissatisfied with the said order passed below Exhibit – 56, the petitioner – original defendant No. 1 is before this Court by way of the present petition.

5. Learned advocate for the petitioner, at the outset, contended that the suit is for cancellation of the registered sale deed dated 28.12.1970, wherein, respondent No. 2 herein, has appeared and filed written statement. In the written statement, defendant No. 2 has supported the case of the plaintiff and has also prayed for cancellation of the sale deed. It is contended that the counter-

claim, which was sought to be filed by defendant No. 2, came to be rejected by the learned Trial Court. Special Civil Application No. 15258 of 2015 was preferred by the present respondent No. 1, challenging the rejection of the counter-claim. The Special Civil Application came to be dismissed