Bhaveshkumar Kantibhai Brahambhatt vs Rupesh Bhanubhai Brahambhatt

Umesh A. Trivedi, J

[1.0] Heard Mr. Hiren M. Modi, learned advocate for the petitioner as also Mr. Gaurang Patel, learned advocate for the respondent on caveat.

[2.0] This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the 2nd Additional District Judge, Nadiad dated 14.09.2022 in Civil Miscellaneous Appeal No.42 of 2022 whereby the injunction granted by the trial Court below Exh.5 in Regular Civil Suit No.45 of 2019 filed at the instance of the present petitioner – original plaintiff came to be modified and the appellate Court directed to maintain status-quo in respect of the suit property.

[3.0] It is the case of the petitioner – original plaintiff in the suit that the original plaintiff had executed a mortgaged deed in the year 2003 in favour of his family relative, which was redeemed in the year 2016 on repayment of the amount borrowed. It is further the case of the petitioner – original plaintiff that in respect of the suit property registered agreement to sale came to be executed in favour of the respondent – defendant, which is wholly incorrect. According to the petitioner – original plaintiff, neither he nor any of his family members have ever executed such an agreement to sale on 28.12.2005, and therefore, such an agreement to sale was without possession of the suit property. According to the case of the petitioner – original plaintiff, since no further action is initiated since date of agreement to sale dated 28.12.2005 till today, it stands automatically cancelled, and therefore, a relief is claimed in the plaint that the petitioner – original plaintiff be declared to be the owner of the suit property. However, alongwith the plaint, the petitioner – original plaintiff produced list of documents vide Exh.3, which includes disputed mortgage deed with possession of the suit property claimed to have been executed by the petitioner – original plaintiff in favour of the respondent – original defendant, without there being any averment in respect of the said mortgage deed in the plaint. On filing of the suit and service of summons to the respondent – original defendant, Exh.5 application came to be determined and respondent – original defendant was restrained from selling, alienating or constructing over the suit land till final conclusion of the suit. The said order passed below Exh.5 was challenged before the appellate Court and the said order came to be modified restraining the respondent – original defendant, in any manner, to deal with the suit property and the appellate Court directed status-quo to be maintained in respect thereof by both the sides. Against that order, this petition under Article 227 of the Constitution of India has come to be filed.

[4.0] Mr. Hiren Modi, learned advocate for the petitioner – original plaintiff, submitted that since the suit property was mortgaged with one family relative in the year 2003 and it is redeemed in the year 2016, there is no question of executing any mortgage deed with possession, that too, in the year 2006 in favour of the respondent – original defendant. He has further submitted that therefore the order passed by the appellate Court referring about the said document is erroneous and requires to be interfered with.

[5.0] Having heard learned advocates for the appearing parties and considering the impugned orders passed by the trial Court as also the appellate Court, it emerges that the petitioner – original plaintiff was claiming to be in possession of the suit property as also the respondent – original defendant pursuant to the mortgage deed with possession in respect of the suit property despite injunction granted against the respondent – defendant restraining him from dealing with in any manner the suit property. However, on true and correct interpretation of the document, as the mortgage deed with possession is executed in the year 2006, the copy of which is though produced by the petitioner – original plaintiff in the list of documents, there is no reference at all made in his own plaint. If it is the case of the petitioner – original plaintiff that there is no question of such mortgage deed being executed in the year 2006 as the very said property according to the claim made in the plaint was mortgaged with some family relative in the year 2003, which came to be redeemed only in 2016, therefore such assertion and submission is found to be prima facie unacceptable. The very fact that he has produced such document alongwith the list and without referring it in the plaint shows that he was having the copy thereof, which is supportive of the fact that he might have executed the same. Since any finding here or there in respect of the documents may prejudice the case of either side, no further discussion is required as the said mortgage deed reflects borrowing of Rs.2,50,000/- and Rs.5,00,000/ - on two different occasions as argued by the respondent – original defendant before the appellate Court, and therefore, the appellate Court found it to be just and proper directing to maintain status-quo by both the sides in respect of the suit property. Since by the mortgage with possession, ownership cannot be said to be transferred, any order directing not to deal with the said property in any manner either transferring or mortgaging is out of question.

[6.0] Therefore, while exercising jurisdiction under Article 227 of the Constitution of India, when the appellate Court has correctly exercised the discretion keeping in mind the case of both the sides and considering the documents also, I see no reason to interfere in the said order, and therefore, this petition is rejected.