Oral Order

1. Draft amendment dated 03.02.2026 is allowed. Necessary amendment shall be carried out forthwith.

2. The present Appeal from Order is filed under Section 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") by the appellant - original plaintiff.

3. Heard learned advocate Mr. M.A. Husseni for learned advocate Mr. Pratik Advani for the appellant.

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

          4.1 The plaintiff - appellant filed a suit for specific performance of a Vechan Karar (sale agreement) dated 04.08.2018 against the respondent in respect of the property situated within the jurisdiction of the Rajkot Municipal Corporation, St. Kabir Road, T.P. Scheme No. 7, F.P. No. 138 paiki land of J.B.T. No. 149. The plaintiff moved an application at Exhibit 5 seeking an injunction restraining the defendants - respondents from transferring the title of the suit property by way of sale, mortgage, gift, etc. till the final disposal of the suit. The Exhibit 5 application was contested by the defendants - respondents by filing a written statement along with a counterclaim seeking possession of the suit property from the plaintiff. The learned Trial Court rejected the Exhibit 5 application.

          4.2 Being aggrieved and dissatisfied with the rejection of the Exhibit 5 application, the plaintiff has preferred the present Appeal from Order.

5. Learned advocate for the appellant contended that the plaintiff and the defendants agreed to purchase and sell the suit property for a total consideration of Rs.1,55,00,000/-, and that the plaintiff made part payment of Rs.55,00,000/- to the defendants. A Vechan Karar was executed between the parties on 04.08.2018.

Thereafter, the defendants executed an agreement/receipt acknowledging part of the consideration on 29.12.2020. It is contended that by 29.12.2020, the plaintiff had paid Rs.77,50,000/- to the defendants. It is further contended that the defendants have admitted, in the written statement as well as in the agreement dated 29.12.2020, that the plaintiff paid Rs.77,50,000/- towards the sale consideration. The plaintiff issued a public notice and a legal notice calling upon the defendants to execute a registered sale deed. As the defendants did not act upon the notices, the suit for specific performance along with the injunction application came to be filed. It is further contended that the plaintiff is in possession of the suit property. The fact that the defendants have sought possession by way of counterclaim itself indicates that the plaintiff is in possession. It is therefore submitted that the plaintiff's possession deserves protection till final disposal of the suit. No other submissions were canvassed.

6. I have considered the submissions advanced by the learned advocate for the appellant and perused the material placed on record. In the Exhibit 5 application, the plaintiff sought an injunction restraining the defendants from transferring the suit property on the assertion that he is in possession pursuant to the agreement dated 04.08.2018. However, the agreement/receipt dated 29.12.2020 stipulates that possession shall be handed over to the plaintiff upon grant of permission by the Rajkot Municipal Corporation and execution of the registered sale deed. Further, in the legal notice dated 22.12.2023, the plaintiff has not asserted that he was in possession pursuant to the agreement to sell. The learned Trial Court has observed that the defendants' case is that the plaintiff is in possession pursuant to rent agreements dated 07.08.2019 and 29.10.2020. The nature of possession is a matter of evidence and cannot be conclusively determined at the stage of deciding the Exhibit 5 application. Moreover, the plaintiff did not seek specific protection of alleged possession in the Exhibit 5 application, but only prayed for restraining defendants against transfer/alienation of the suit property. Upon consideration of the impugned order, I find no reason to interfere, as the findings recorded by the learned Trial Court are tentative and consistent with settled principles governing interim relief. The present Appeal from Order is therefore rejected.

7. It is needless to observe that the learned Trial Court shall decide the suit strictly on its own merits and without being influenced by the observations made hereinabove.

8. In view of the disposal of the main matter, the connected Civil Application does not survive and is disposed of accordingly.

9. Learned advocate for the appellant, at this stage, prays for stay of the present order for a period of four weeks.

10. Considering the facts and circumstances of the present case, the prayer for stay of the present order is rejected.