A.J.SHASTRI,J - (1.) The present Appeal from Order under Order 43 Rule 1 and Section 104 of the Code of Civil Procedure is filed for the purpose of challenging the legality and validity of an order dated 14.12.2018 passed by the learned 8th Additional Senior Civil Judge, Gandhinagar, below Exh.5 refusing the temporary injunction as prayed for by the plaintiff.
(2.) At the outset, when the matter is taken up for hearing, learned advocate Mr.Sunilsinh J.Chauhan for learned advocate Mr.Arpit P.Patel for the appellant has submitted that there is a clear error on the part of the learned trial Judge in passing the order. It has also been submitted that banakhat is prior in point of time and sizable amount is already been paid, still however, the sale deed has not been executed. It has further been submitted that simply because respondent Nos.5 to 11 have become registered sale deed holder, the injunction relief should not have been refused, more particularly, when there is a clear assertion reflecting in written statement in paragraph No.3, which is projected on page 18 of the paper book compilation. It has further been submitted that the execution of banakhat mark upon 3/13 has already been admitted and in that way of matter when document is admitted by the respective parties there was hardly justifiable reason for refusing the injunction. Resultantly, such material error in exercising of jurisdiction deserves to be corrected. Learned advocate for the appellant has submitted that he is ready and willing to deposit the balance amount of sale consideration and if the injunction is refused then serious prejudice will cause to him. No other submissions have been made.
(3.) Having heard learned advocate for the appellant and having gone through the material on record, it appears clearly that the respondent Nos.5 to 11 have become the registered sale deed holder by virtue of transaction in question, which is not in dispute with respect to very same property, they have become bona fide purchaser of land in question with full consideration. As a result of this, to prevent registered holder of the property from lawful enjoyment is tantamount to allowing the speculative move of the original plaintiff. It further appears that even banakhat undisputedly is executed by only one of the co-owners and rest of the co-owners have not singed the banakhat, which is in question produced mark 3/13 and after all over examination, the learned trial Judge has found that there is some doubt with regard to execution of banakhat. In that view of the matter, simply because some amount at the time of agreement to sell paid, the trial court ought to have granted injunction against the registered sale deed holder. The observations contained in an order since are with application of mind, the Court would like to reproduce the same hereinafter: "6.2 Heard both the sides before proceeding further application, on perusal of the record on hand, it is admitted position that the banakhat produced at Mark- 3/13 is executed between plaintiff and defendant No.1 only and not by all the co-owners . The plaintiff has categorically averred that defendant No.1 is owner of the suit land admeasuring about '0'-hecter and '24' aare and -'00' square meter (24 guntha) total land of block/ survey No.192/7, 192/5/1, 192/5/2. It is admission of plaintiff on record that registered sale deed respective suit land was to be executed after getting title clear by defendant No.1 to 4 on revenue record of rights. As such page No.2 of banakhat states that: "The page No.2 of the banakhat states that the undivided and independent land admeasuring H.Are.Sqare Meter 2400 sqare meter (24 guntha), is self acquired, ancestral, independent possession ownership and occupation of the executor father." Further, the respective land is unpartitioned one. There is no description of land that comes in the share of defendant No.1. As such defendant No.1 to 4 are co- owner of the total land that is prima facie proved from the record on hand. Admittedly the signature of defendant No.2 to 4 are not in banakhat that is executed by defendant No.1 only. Further, if the respective banakhat is prima facie perused the same has been signed by "Mangaji Kanaji Thakor" i.e. witness No.2. Respective banakhat was executed on 13th" February, 2013 and copy of Mangaji Kanaji Thakor's Election card has been produced along with respective banakhat that mentions date as 12.08.2015 that prima-facie raises doubt in respect to banakhat. 6.3 Plaintiff has filed present suit property on the basis of banakhat this is prima facie suspicious. Further, as the say of plaintiff he has paid Rs.18,51,000/- to the plaintiff and he is ready and willing to pay Rs.30,00,000/- to defendant N0.1. However he has prima facie failed to prove capacity to pay respective amount on hand. As such respective banakhat is not executed by co-owners of the suit property and further the share of the present defendant No.1 has stated by him is also not particular. Accordingly plaintiff came to be failed to prove his prima facie case and balance of convenience and irreparable loss, the three ingredients of temporary injunction that he must prove in his favour. The present Court has most respectfully perused the judgments produced by the defendant that helps the arguments advanced by them. Accordingly, issue no. 1 is answered in Negative and perused the judgment produced by defendant No.5 to 11, following order is passed in respect to issue no. 2 in the. interest of justice :" ;