JUDGMENT : 1. This Appeal from Order is filed at the instance of the present appellant - original plaintiff under Order-43 Rule-1 of the Code of Civil Procedure, 1908. The appellant herein – original plaintiff instituted the suit seeking specific performance of the agreement to sale dated 06.04.2013. The appellant herein has prayed for the reliefs as prayed for in the Suit, which reads thus: “1) Out of the disputed New Tenure cultivable agricultural land having area of He-Ar 3-53-18 mtr means 35318 square meters at Variyav Revenue Survey No. 787 having block no. 721 and assessment rate of Rs.39.19 located at Sub-district Surat City (Adajan), District Surat, half of the land of the Respondents means ½ share measuring He-Ar 1-76-59 mtr which is agricultural land having area of 17659 square meter (present block no. 721/A entitled for non-agricultural premium having area of He-Ar 1-76-59 mtr or 17659 square meter and assessment rate of Rs.19.60) along with all the entitled easements thereof, a notarized written Deed of Exchange means an agreement to sell had been executed between we the applicants and the Respondents on 06/04/2013. The Hon’ble Court be pleased to issue orders that all the respondents get together and execute a registered sale deed of the disputed land in favor of we the applicant and peacefully hand over the direct possession of land. Alternatively If the respondents fail to comply with the specific performance of the agreement, execute a sale deed of the disputed land in favor of we the applicant and hand over the possession thereof peacefully, a court commissioner be appointed who may execute a registered sale deed of the disputed land in favor of we the applicant and hand over the direct possession of land in unoccupied and peaceful conditions to we the applicants. (2) Under any circumstances, if granting the prayer of complying with specific performance of agreement seems not appropriate, the Hon’ble court be pleased to issue a decree that the respondents, jointly and severally, shall be liable to repay the consideration amount of Rs.2,64,39,105/- (Rupees two crore sixty four lakhs thirty nine thousand one hundred and five only) paid by we the applicants along with the premium amount of Rs.83,88,025/- (Rupees eighty three lakhs eighty eight thousand twenty five only) totaling to Rs.3,48,27,130/- (Rupees Three crore forty eight lakhs twenty seven thousand one hundred thirty only). Additionally, Rs.3,48,27,130/- (Rupees three crore forty eight lakhs twenty seven thousand one hundred thirty) be paid as the compensation towards losses caused due to the breach of contract along with an interest at the compounding rate of 18% from the date of plaint till the recovery thereof and all the recoverable amounts be recovered from the respondents and their properties. (3) The respondents be declared as not entitled to sell, pledge, gift or otherwise transfer or convey the disputed land or make changes in the physical condition thereof or hand over its possession to any other which is in violation of the Deed of Exchange executed by the respondents with we the applicants. (4) The Hon’ble Court be pleased to issue a permanent injunction that until the sale deed mentioned above at para(1) is not executed, the respondents shall not sell, pledge, gift or otherwise transfer or convey the disputed land or do not create any encumbrance or make changes in the physical condition of the disputed agricultural land or hand over its possession to any other which is in violation of the Deed of Exchange executed by the respondents with we the applicants.” 2. The appellant herein also filed an application below Exh.5 seeking the following reliefs, which reads thus: “1) Kindly pass a temporary injunction order restraining the respondents from transferring or getting transferred the agricultural land in suit to other person by sale, mortgage, gift or any other way and creating or getting created any encumbrance on it and making or getting made any changes in the situation of it and handing over or getting handed over its possession to any one by breaching agreement of the exchange deed executed with me – the plaintiff until registered sale-deed for the land in suit mentioned in Para (1) above is executed in favour of me – the plaintiff. (2) Kindly award the cost of this petition from the respondents. (3) Kindly grant any other relief which the Court may deem fit and appropriate considering all the facts of the petition.” 3. The Court below dismissed the application below Exh.5 filed by the appellant – original plaintiff by order dated 25.03.2021 in Special Civil Suit No. 306 of 2018. The appellant being aggrieved and dissatisfied by the order passed by the Court below dated 25.03.2021, has approached this Court by filing the present Appeal from Order. 4. The Court below dismissed the application below Exh.5 filed by the appellant – original plaintiff by order dated 25.03.2021 in Special Civil Suit No. 306 of 2018. The appellant being aggrieved and dissatisfied by the order passed by the Court below dated 25.03.2021, has approached this Court by filing the present Appeal from Order. 4. The brief facts leading to the filing of the present Appeal from Order are summarized thus: 4.1. The dispute as stated by the appellant – orig. plaintiff is with regard to the property with respect to the land of District: Surat, Sub-District- Adajan, Mouje: village Variyav, Survey No. 787, Block No. 721, new tenure agriculture land, total admeasuring Hector-Are-Sq.mtrs. 3-53-18 i.e. 35318 sq.mtrs. 1/2 share of the land, i.e. Hector-Are-sq.mrs. 1-76-59 i.e. 17659 sq.mtrs. of land (for short ‘the suit land’). 4.2. It is the case of the appellant herein - original plaintiff that, 50% of the land (half share) as stated above, belongs to Maniben @ Maliben d/o. Makanbhai Koya, Diwaliben D/o. Makanbhai Koyabhai and remaining 50% of the land (half share) belong to Ambaben Ramubhai Patel, Jashuben Ramubhai Patel and Naginbhai Ramubhai Patel, joint ownership of the land in question. It is further the case of the appellant – original plaintiff that the original defendant no.1 Maniben @ Maliben and defendant no.5 Diwaliben @ Deviben entered into an agreement to sale dated 06.04.2013 with respect to their 50% share of the suit property / suit land. The said agreement to sale was notarized in the presence of Advocate and Notary by registration no. 493/2013. It is further stated by the appellant that, as stated in the agreement to sale, the price for 7.42 vighas of suit land was decided at Rs.3,52,52,420/-. The appellant had paid Rs.5,00,000/- before entering into agreement to sale on 17.02.2013 and on the date of agreement to sale, the appellant – original plaintiff paid the consideration of Rs.72,13,105/- in cash, and one cheque of R.1,00,000/- each (total 11 cheques) of AXIS Bank on 06.04.2013. It is the case of the appellant that the appellant has paid total consideration of Rs.88,13,105/- in favour of the respondents – defendants on 06.04.2013. The defendants entered into the agreement to sale with the appellant – orig. plaintiff with certain conditions as mentioned in the said agreement to sale. 4.3. The appellant herein – orig. It is the case of the appellant that the appellant has paid total consideration of Rs.88,13,105/- in favour of the respondents – defendants on 06.04.2013. The defendants entered into the agreement to sale with the appellant – orig. plaintiff with certain conditions as mentioned in the said agreement to sale. 4.3. The appellant herein – orig. plaintiff filed an application before the Collector for seeking the permission to convert the suit land, from new tenure into old tenure, by an application dated 20.03.2017. The Collector by an order dated 23.10.2017 granted the permission for converting the said land from new tenure to old tenure on the payment of premium of an amount of Rs.83,88,025/-. On the basis of the said order, the revenue entry being No. 15585 came to be mutated in the name of the defendants on 16.11.2017 and the same came to be certified on 15.02.2018. It is further the case of the appellant that since the appellant was seeking bona-fide performance of agreement to sale, after the land was converted into old tenure, asked the defendants for specific performance of the agreement to sale dated 06.04.2013. 4.4. It is further stated by the appellant herein that to the utter shock of the appellant herein, the defendants published a public notice in the Gujarati daily on 05.09.2018. In view of above, the appellant – original plaintiff was constrained to approach the Court below by filing Special Civil Suit No. 306 of 2018 seeking specific performance of agreement to sale dated 06.04.2013. 5. Heard Mr. Dipen Desai, the learned counsel appearing for the appellant- original plaintiff and Mr. Aspi M. Kapadia, the learned counsel appearing for the respondents – original defendants. SUBMISSIONS ON BEHALF OF THE APPELLANT: 6.1. Mr. Dipen Desai, the learned counsel appearing for the appellant vehemently submitted that the Court below completely erred in not appreciating the fact that the suit in question is preferred with respect to the land admeasuring 17,659 sq.mtrs. bearing Block No. 721/A of Revenue Survey No. 787 paikee and therefore, the land has been specifically earmarked in the suit and hence, there was no question of partition and division of the land in question. 6.2. Mr. Desai, the learned counsel further submitted that the Court below have not properly appreciated the fact that the appellant – original plaintiff has entered into agreement to sale with opponents – orig. 6.2. Mr. Desai, the learned counsel further submitted that the Court below have not properly appreciated the fact that the appellant – original plaintiff has entered into agreement to sale with opponents – orig. defendants in which the defendants have agreed to sale the land in question to the appellant and in which the defendants have also accepted to have received substantial sale consideration of approximately Rs.3.52 Crore. The appellant having paid the substantial sale consideration for purchasing the land in question, the Court below ought to have protected the interest of the present appellant – original plaintiff. 6.3. Mr. Desai, the learned counsel further submitted that the Court below erred in not properly appreciating the fact that the appellant has in addition to the payment of above-referred sale consideration, paid the amount of premium of Rs.83,88,625/- to the office of the Collector, for converting the land into old tenure land, and the appellant has also produced the statement of the accounts of the appellant showing that the premium amount has been paid out of the bank account of the appellant. The appellant having paid the substantial sale consideration to the respondents- defendants and the appellant having paid the premium amount, thereby having invested huge amount on the land in question, the Court below erred in not granting the injunction in favour of the appellant – orig. plaintiff. 6.4. Mr. Desai, the learned counsel further submitted that the Court below has erred in interpreting Section 49 of the Registration Act, 1908. He further submitted that, the proviso to Section 49 clearly provides that an unregistered document affecting immovable property can be received as evidence of a contract in a suit for specific performance. Mr. Desai, further submitted that, in the present case, the suit is instituted for specific performance of the contract and therefore, an unregistered document can always be considered as evidence. Mr. Desai, further submitted that the stage of considering the document as evidence has not yet reached and the issue was only for the purpose of considering the document for injunction application below Exh.5. 6.5. Mr. Desai, the learned counsel submitted that, the agreement to sale was an agreement without possession of the immovable property, and therefore, the said agreement was not required to be registered. Mr. 6.5. Mr. Desai, the learned counsel submitted that, the agreement to sale was an agreement without possession of the immovable property, and therefore, the said agreement was not required to be registered. Mr. Desai, submitted that the agreement to sale clearly stipulates that the appellant has paid the above referred amount and the opponents – orig. defendants have received the sale consideration and the opponents have agreed to enter into the registered sale deed after all the formalities with respect to the subject land are completed. Mr. Desai, further submitted that, once the suit land was converted into old tenure land and after prohibitory order of the Civil Court that was passed in Regular Civil Suit No. 426 of 2006 was lifted, the opponents – orig. defendants were required to execute the registered sale deed with the appellant and on failure of the respondents in doing so, the appellant was constrained to institute a Suit seeking specific performance of the agreement to sale entered into between the appellant and the respondents on 06.04.2013. 6.6. Mr. Desai, the learned counsel appearing for the appellant has relied upon the decision rendered by this Court in case of Taufik Idrishbhai Patel (Ghanchi) v. Nurabhai Alibhai Momin (Bhagat) reported in 2021 (1) GLH 569. 6.7. Mr. Desai, the learned counsel further submitted that the trial Court has also erred in observing that the suit filed by the appellant is barred by Section 41(h) of the Specific Relief Act, without properly appreciating the fact that the land in question has been properly earmarked and divided as Block No. 720/A admeasuring 17569 sq.mrs., and therefore, it could not be said that there was a bar of Section 41(h) of the Specific Relief Act, to the facts and circumstances of the present case. 6.8. Mr. Desai, the learned counsel submitted that the defendants though served chose not to appear and their right to file the reply was also closed. There was no opposition to the claim of the appellant-plaintiff. Mr. Desai, submitted that, this is also one of the reasons that in absence of any opposition of the defendants, the Court failed to consider the case of the appellant- plaintiff by rejecting the interim relief in favour of the appellant – plaintiff. 6.9. Mr. There was no opposition to the claim of the appellant-plaintiff. Mr. Desai, submitted that, this is also one of the reasons that in absence of any opposition of the defendants, the Court failed to consider the case of the appellant- plaintiff by rejecting the interim relief in favour of the appellant – plaintiff. 6.9. Mr. Desai, the learned counsel lastly submitted that the Court below has erred in not considering the fact that the appellant – plaintiff has prima-facie case, balance of convenience and also irreparable loss would be caused to the appellant in absence of interim protection, if the defendants are not restrained from transferring or alienating the suit property. The likelihood of multiplicity of the proceedings and further complication would arise inasmuch as the appellant is having interest in the suit land and having paid consideration to the tune of Rs.3.52 crores (approximately). In view of above, Mr. Desai, submitted that the order passed by the Court below dated 25.03.2021 rejecting the application below Exh.5 filed by the appellant- plaintiff deserves to be quashed and set aside, as the same being illegal and contrary to the settled principles of law. SUBMISSIONS ON BEHALF OF RESPONDENTS: 7.1. Mr. Aspi M. Kapadia, the learned counsel appearing for the respondents- orig. defendants, at the outset submitted that the order passed by the Court below dated 25.03.2021 dismissing the application below Exh.5 requires no interference. The trial Court has rightly dismissed the application below Exh.5 and the present Appeal from Order filed by the appellant – original plaintiff is required to be dismissed in limine. Mr. Kapadia, submitted that the Special Civil Suit No. 306 of 2018 came to be instituted on 06.09.2018 against the respondents herein – orig. defendants seeking specific performance of an alleged agreement to sale dated 06.04.2013 and in the alternative, claiming refund of the amount allegedly paid as well as the damages / compensation for an amount of Rs.3,48,27,130/- for breach of contract. In absence of any cogent documents, the trial Court rightly dismissed the application below Exh.5 filed by the appellant – orig. plaintiff by an order dated 25.03.2021. Mr. Kapadia, submitted that the agreement to sale dated 06.04.2013 produced by the plaintiff at Mark 3/5 is with respect to 1/2 undivided portion of Revenue Survey No. 787 (Block No. 721) of Village: Variav, new tenure land. 7.2. Mr. plaintiff by an order dated 25.03.2021. Mr. Kapadia, submitted that the agreement to sale dated 06.04.2013 produced by the plaintiff at Mark 3/5 is with respect to 1/2 undivided portion of Revenue Survey No. 787 (Block No. 721) of Village: Variav, new tenure land. 7.2. Mr. Kapadia, submitted that the agreement to sale in respect of new tenure land is prohibited by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short ‘the Tenancy Act’), unless a previous sanction of the Collector is obtained. Mr. Kapadia submitted that Section 43(2) of the Tenancy Act provides that any transfer or any agreement to transfer shall be invalid. Mr. Kapadia, submitted that the suit for specific performance of a contract based on an invalid agreement to sale hit by Section 43 of the Tenancy Act is not maintainable in law specifically in the State of Gujarat. 7.3. Mr. Kapadia, the learned counsel submitted that the appellant – plaintiff in the plaint, in para-8 has averred that application for conversion of new tenure suit land to old tenure was made on 20.03.2017 under the name of the defendants and the said permission was granted by order dated 23.10.2017. It is alleged that the premium amount for such conversion was also paid by the plaintiff. 7.4. Mr. Kapadia, the learned counsel submitted that since the agreement to sale dated 06.04.2013 was with respect to a new tenure land and the requisite permission on payment of premium came to be granted by the Collector by an order dated 23.10.2017, the said agreement to sale dated 06.04.2013 would still be an invalid agreement and the same cannot be entertained by the Civil Court and no specific performance thereof can be granted. Mr. Kapadia, submitted that the agreement to sale would also hit by Section 23 of the Indian Contract Act. Mr. Kapadia, further submitted that the agreement to sale specifically mentions that the suit land was declared to be excess land under the land ceiling law and on this count also, the agreement to sale would be against the public policy and the same would also not be enforceable in law. 7.5. Mr. Kapadia, the learned counsel submitted that the suit land is agricultural land and therefore, the restraint under Section 63 of the Tenancy Act would also apply. Mr. 7.5. Mr. Kapadia, the learned counsel submitted that the suit land is agricultural land and therefore, the restraint under Section 63 of the Tenancy Act would also apply. Mr. Kapadia, submitted that nowhere in the plaint or in the agreement to sale it is stated that the appellant-plaintiff is an agriculturist as per the definition provided in the Tenancy Act. On such count also, the specific performance cannot be granted. 7.6. Mr. Kapadia, the learned counsel submitted that the agreement to sale dated 06.04.2013 is not registered under the Indian Registration Act, 1908. Mr. Kapadia submitted that the Section 17 of the Act provides that agreement to sale in respect of immovable property is required to be compulsorily registered, and therefore, the Court below would be justified to refuse the grant of injunction, which was a discretionary relief on the ground that the agreement to sale is not registered as it reflects on the conduct of the plaintiff of not abiding by the law of the land. Mr. Kapadia, further submitted that the payments made by the appellant-plaintiff have been made by them in cheque as well as by cash. Mr. Kapadia submitted that the amount of about Rs.1.75 crore have been paid in cash as stated in the plaint and it is to be noted that the plaint does not disclose the source or the details of such cash in the hands of the plaintiff. Mr. Kapadia, submitted that in absence of such averments, the Court below rightly rejected the injunction in favour of the plaintiff. 7.7. Mr. Kapadia, the learned Counsel submitted that the defendants had filed their written statement on 22.06.2021 and the documents produced in the written statement be taken on record and the same be taken into consideration for deciding the present Appeal from Order. Mr. Kapadia submitted that the AXIS bank statement which was produced at Mark 3/21 which is of Parahmhans and Co. showing the payment of Rs.83,88,025/- dated 18.09.2017 cannot be said to have been a payment made on behalf of the appellant – plaintiff, in absence of any averment made by the plaintiff-appellant to show the plaintiff’s connection with Parahmhans and Co. Mr. Kapadia also submitted that 11 cheques paid to the defendants were issued by one Laljibhai Tulshibhai Patel, pursuant to the Saudha Chhithi dated 16.02.2013. Mr. Mr. Kapadia also submitted that 11 cheques paid to the defendants were issued by one Laljibhai Tulshibhai Patel, pursuant to the Saudha Chhithi dated 16.02.2013. Mr. Kapadia, submitted that the agreement to sale was of the year 2013 and the suit was filed belatedly after a period of five years i.e. in the year 2018. In view of such delay in filing the suit, it cannot be said that the trial Court had committed any error in refusing the injunction in favour of the appellant – orig. plaintiff. 7.8. Mr. Kapadia, the learned counsel submitted that the appellant admittedly not in possession of the suit land and granting of injunction is a discretionary order which the appellate Court may grant or may not grant, considering the facts and circumstances of each case. 7.9. Mr. Kapadia, the learned counsel submitted that the plaintiff has claimed compensation/damages in the alternative, which can provide the plaintiff the adequate relief if at all the plaintiff succeeds in the final stage of the Suit. 7.10. Mr. Kapadia, the learned counsel relied upon various judgments of this Court as well as the Apex Court substantiating the stand that since the agreement to sale was dated 06.04.2013 and which was of a new tenure land, the agreement between the appellant – plaintiff and opponents - defendants was a void agreement, though, the defendants not appeared before the Court below, the stage of filing of the reply was also closed, the presence of defendants were not required in view of the fact that the transaction itself is null and void. 7.11. Mr. Kapadia, the learned counsel lastly submitted that, as the suit itself is not maintainable, the Court below could not be said to have committed any error in dismissing the application below Exh.5 and this Court in view of above, may not interfere in the order passed by the Court below in rejecting the application below Exh.5 filed by the appellant dated 25.03.2013. 8. The Court below while rejecting the application below Exh.5 considered the submissions made by the appellant – original plaintiff and observed thus: “From the documents in the instant case, the property in question appears standing in the names of other persons besides the plaintiff. 8. The Court below while rejecting the application below Exh.5 considered the submissions made by the appellant – original plaintiff and observed thus: “From the documents in the instant case, the property in question appears standing in the names of other persons besides the plaintiff. Moreover, the plaintiffs have neither produced any evidence as to what is the share of the plaintiffs, from which direction and how they hold share in the property in question nor produced any document showing family partition of the property in question in the instant case. In addition, it is also not sought in the prayer of the suit to divide the property in question and to distribute the shares therein. Therefore, it is not brought on record as to how much and from which direction, the said Maniben @ Maliben D/o. Makanbhai Koyabhai and Diwaliben @ Deviben Makanbhai Koyabhai holds share in the property in question. Thus, present application is barred by Section-41(H) of the Specific Relief Act as no prayer has been sought for partition of the property in question. Moreover, the Deed of Exchange of Mark-3/5 submitted by the plaintiff is not registered as per the provisions of the Registration Act. Moreover, the plaintiff has not produced any document showing the source of money for which the money receipts are issued. Moreover, the plaintiff has sought prayer for monetary compensation and therefore, the principles laid down in the said judgments are not helpful to the plaintiff. One judgment is prior to the amendment in Section-53(A) of the Transfer of Property Act. Therefore, the principles laid down in the said judgments are not helpful to the plaintiff. (10) Thus, as the plaintiff failed to prove all three points in their favour as discussed above and considering the records produced, the plaintiffs are not entitled for the relief as sought for and hence, I pass final order as under: ORDER Injunction application of Exhibit-5 of the plaintiff is hereby rejected. Cost shall follow the final outcome of the suit.” ANALYSIS 9.1. The appellant – orig. plaintiff instituted the suit for the specific performance of the agreement to sale by way of a notarized written deed dated 06.04.2013 executed between the present appellant – orig. plaintiff and present respondents – orig. Cost shall follow the final outcome of the suit.” ANALYSIS 9.1. The appellant – orig. plaintiff instituted the suit for the specific performance of the agreement to sale by way of a notarized written deed dated 06.04.2013 executed between the present appellant – orig. plaintiff and present respondents – orig. defendants for New Tenure cultivable agricultural land having area of He-Ar 3-53-18 mtr means 35318 square meters at Variyav Revenue Survey No. 787 having block no. 721 and assessment rate of Rs.39.19 located at Sub-district Surat City (Adajan), District Surat, half of the land of the Respondents means ½ share measuring He-Ar 1-76-59 mtr which is agricultural land having area of 17659 square meter (present block no. 721/A entitled for nonagricultural premium having area of He-Ar 1-76-59 mtr or 17659 square meter and assessment rate of Rs.19.60) along with all the entitled easements thereof and restraining the defendants from alienating the suit property. 9.2. The main dispute of the land in question is with regard to the agreement to sale dated 06.04.2013, the same reads thus: “INDIA - NON JUDICIAL STAMP of Rs. 100/- AA617226 Maniben alias Maliben Makanbhai 68, Shridhar Society, beside Panchvati Society, Jahangirpura Olpad, Surat Hitesh Kalthiya DEED OF EXCHANGE i.e SALE DEED Upendra P. Patel Sd/-illegible - Sd/- Maliben J. Patel Ramilaben - Sd/- Hansa Parvatiben Gijubhai Patel - Sd/- Sudhaben This deed of Exchange i.e Sale deed is executed on 6th day of April month of 2013 by Purchaser of this Deed of Exchange i.e Sale deed: Shri Upendrabhai Parshottambhai Patel, age about 42 years, religion Hindu, Occupation : Agriculturist and trade, Residing at 7/2 Narayan-Muni Nagar, Ved-road, Surat. i.e Party of the first part. (The terms "Party of the first part", "Purchaser of the agreement" shall include their Heirs, Successors, Assignees, Transferees, Attorneys, Administrators, Executives etc. Herein after referred in this deed as "Purchaser in the deed of exchange", "Party of the first Part" and "You".) Seller of this Deed of Exchange i.e Sale deed: (1) Maniben alias Maliben D/o Makanbhai Koyabhai & W/o Jekishanbhai, age about 74 years, caste : Hindu, Occupation: agriculturist and house chore work, Residing at : 68, Shridhar Society, Jahangirpura, Surat. (2) Sudhaben Rameshbhai D/o Jekishanbhai, age about 47 years, caste : Hindu, Occupation: agriculturist and house chore work, Residing at: 2192, Ashoknagar, Olpad, Dist. Surat. (2) Sudhaben Rameshbhai D/o Jekishanbhai, age about 47 years, caste : Hindu, Occupation: agriculturist and house chore work, Residing at: 2192, Ashoknagar, Olpad, Dist. Surat. (3) Mukesbhai Jekishanbhai, age about 45 years caste : Hindu, occupation : Agriculturist and trade, Residing : at 68, Shridhar Society, Jahangirpura, Surat. (4) Nitinbhai Jekishanbhai, age about 43 years caste : Hindu, occupation : Agriculturist and trade, Residing at : 68, Shridhar Society, Jahangirpura, Surat. (5) Divaliben alias Deviben D/o Koyabhai & W/o Ishwarbhai, age about 70 years caste : Hindu, Occupation : Agriculturist and house chore work, Residing at : 1/9, At Post Bhensan, Taluka Choryasi, Dist. Surat. (6) Parvatiben Gijubhai D/o Ishwarbhai, age about 50 years Caste : Hindu, occupation : Agriculturist and house chore work, Residing at 1/9, At Post Bhensan, Taluka Choryasi, Dist. Surat. (7) Shantilal Ishwarbhai, Age about 46 years caste : Hindu, Occupation : Agriculturist and trade, Residing at : 1/9, At Post Bhensan, Taluka Choryasi, Dist. Surat. (8) Sudhaben Rameshbhai D/o Ishwarbhai, Age about 48 years caste : Hindu, Occupation : Agriculturist and house chore work, Residing at: 2/2076/4 Gajjar Maholla, Taluka Choryasi, Dist. Surat. (9) Hansaben Thakorbhai D/o Ishwarbhai, age about 53 years, caste : Hindu, occupation : Agriculturist and house chore work, residing at: 231, At. P.O. Gasna Taluka Dist. Bharuch. (10) Kokilaben Satishbhai D/o Ishwarbhai, age about 40 years, caste : Hindu, occupation : Agriculturist and house chore work, residing at 231, At. P.O. Jinod Taluka Olpad, Dist. Surat. (11) Ramilaben Balvantbhai D/o Ishwarbhai, age about 38 years, caste : Hindu, occupation : Agriculturist and house chore work, residing At. P.O. Dihen Taluka Olpad, Dist. Surat. ....Party of the Second part (The term "Party of the second part", "Seller in the agreement" shall include their Heirs, Successors, Assignees, Transferees, Attorneys, Administrators, Executives etc. Herein after referred in this deed as "Seller in the deed of exchange", "Party of the Second Part" and "We".) Consent giver in this Exchange of deed i.e Sale deed i.e party of the Third Part:- As legal heir of the deceased Paliben - widow of Ramubhai Ranchhodbhai :- (1.1) Jasuben Ramubhai Patel, age about...... years, caste : Hindu, occupation : Agriculturist and house chore work, residing at..… (1.2) Naginbhai Ramubhai Patel, age about...... years, caste : Hindu, occupation : Agriculturist, residing at..… (1.3) Ambaben Ramubhai Patel, age about...... years, caste : Hindu, occupation : Agriculturist and house chore work, residing at..… (1.2) Naginbhai Ramubhai Patel, age about...... years, caste : Hindu, occupation : Agriculturist, residing at..… (1.3) Ambaben Ramubhai Patel, age about...... years, caste : Hindu, occupation : Agriculturist and house chore work, residing at..... (2) Ishwarbhai Ranchhodbhai, age about 66 years, caste : Hindu, occupation : Agriculturist, residing At. P.O. Variyav, Kolivad, Taluka Surat City, Surat. ----------------------------------------------------------------------------------- Through this exchange deed i.e. sale deed, the party of the second part gives in writing to the party of the first part that: Entire 17659 Sq.m land of our share with all its inner and outer rights out of the agricultural land for cultivation of new tenure under section – 43 of the Tenancy Act at Surat District, Surat City Sub-district moje Variyav village, Block No – 721, Survey No – 787, the area of which is around 35318 Sq.m as per the 7/12 and assessment is Rs. 39.19 paisa. The said land is under the independent and absolute ownership and direct possession of the party of the second part and the vacant, peaceful and direct possession of the said land is with the party of the second part. The party of the second part has the complete right of administration, management, use, consumption of the said land. With that right and authority, the party of the second part has decided to sell the entire said land of around 7.42 Bigha (on calculating 1 Bigha = 2378) to the party of the first part at the rate of Rs. 47,51000/- per 1 Bigha, at the consideration of total Rs. 3,52,52,420/- for 7.42 Bigha, in words Rs. Three Crores Fifty Two Lakhs Fifty Two Thousands Four Hundreds and Twenty only. The party of the second part has been paid the earnest money of Rs. 500,000/-, in words Rs. Five Lakhs only in cash on 17/02/2013, Rs. 72,13,105/-, in words Seventy Two Lakhs Thirteen Thousands One Hundred and Five only in cash on today and Rs. 11,00,000/-, in words Rs. Eleven Lakhs only by cheque, totalling Rs. 88,13,105/-,in words Eighty Eight Lakhs Thirteen Thousands One Hundred and Five only till date as per the below detail. Five Lakhs only in cash on 17/02/2013, Rs. 72,13,105/-, in words Seventy Two Lakhs Thirteen Thousands One Hundred and Five only in cash on today and Rs. 11,00,000/-, in words Rs. Eleven Lakhs only by cheque, totalling Rs. 88,13,105/-,in words Eighty Eight Lakhs Thirteen Thousands One Hundred and Five only till date as per the below detail. S. No. Detail Cheque No. Date Amount Rs Receive (1) Axis Bank Ltd. 904368 06/04/2013 1,00,000/- Jekishandas Patel (2) Axis Bank Ltd. 904369 06/04/2013 1,00,000/- Sudhaben Patel (3) Axis Bank Ltd. 904370 06/04/2013 1,00,000/- Mukeshbhai Patel (4) Axis Bank Ltd. 904371 06/04/2013 1,00,000/- Nitinbhai Patel (5) Axis Bank Ltd. 904372 06/04/2013 1,00,000/- Deviben @ Diwaliben (6) Axis Bank Ltd. 904373 06/04/2013 1,00,000/- Parvatiben Patel (7) Axis Bank Ltd. 904374 06/04/2013 1,00,000/- Shantilal Patel (8) Axis Bank Ltd. 904375 06/04/2013 1,00,000/- Sudhaben Patel (9) Axis Bank Ltd. 904376 06/04/2013 1,00,000/- Hansaben Patel (10) Axis Bank Ltd. 904377 06/04/2013 1,00,000/- Kokilaben Patel (11) Axis Bank Ltd. 904378 06/04/2013 1,00,000/- Ramilaben Patel (12) Today in Cash -- -- 72,13,105/- Total Rs. 88,13,105/- (In words Eighty Eight Lakhs Thirteen Thousands One Hundred and Five only) The total amount of Rs. 88,13,105/-, in words Eighty Eight Lakhs Thirteen Thousands One Hundred and Five only, has been received by the party of the second part from the party of the first part till date, and the party of the second part gives the written receipt and acknowledgement for the same to the party of the first part, and the party of the second part gives guarantee and assurance for the same. The party of the second part shall get cancelled the injunction order on the said land before the consideration amount of Rs. 2,64,39,315/-, in words Rs. Two Crores Sixty Four Lakhs Thirty Nine Thousands Three Hundreds and Fifteen only is paid and the party of the second part shall also get the surplus land in the 7/12 of the said land cleared and with marketable title. We shall accept the remaining consideration amount only after the entry of injunction and surplus are cancelled, which is the main condition of the sale deed, and the same shall be paid as per the following detail if no objection or dispute is raised after publishing for two times a public notice regarding the title clearance of the said land in the daily newspaper of Surat City. S. No. Amount Rs. S. No. Amount Rs. Share Date 1. Rs. 88,13,105/- 25% Second instalment on 16/12/2013 on removing injunction before the second. 2. Rs. 88,13,105/- 25% Third instalment on 16/08/2014. 3. Rs. 88,13,105/- 25% Fourth instalment on 16/04/2015 On the payment of the entire remaining amount of consideration to the party of the second part by the party of the first part, the vacant, peaceful and direct possession of the place shall be handed over after getting measured by the government officer and executing the sale deed in your name or the name suggested by you as per the Jantri of the government prevailing at the concerned time. In this regard, the party of the second part give the written consent and acknowledgement through this exchange deed. – CONDITIONS:- (1) The market value i.e. selling price of the land has been decided between us on the basis of its location, area, soil fertility etc. Accordingly, upon deciding to sell and buy the land for the value mentioned above, you – the party of first part have paid the total amount of Rs.88,13,105/- (Rupees Eighty Eight Lakh Thirteen Thousand One Hundred Five Only) including the amounts paid earlier and being paid today of the selling price in cash and through a cheque to us – the party of the second part and the remaining amount of the consideration for sale, Rs.2,64,39,315/- (Rupees Two Crore Sixty Four Lakh Thirty Nine Thousand Three Hundred Fifteen Only) shall be paid after publishing a public notice for title clearance in daily newspaper of Surat City and not receiving any objection or dispute. We - the party of the second part hereby give agreement and undertaking that a vacant, peaceful and direct possession of the property shall be handed over by taking measurements and executing sale deed in favour of you or any other person as you may suggest on payment of the remaining amount of the consideration for sale. We – the party of the second part shall, remaining present in person, execute sale-deed for the land in the name of the party of the first part or in the name as may be suggested by them as per the rate of jantri fixed by the Government at the relevant times at a specific request of the party of the first part on complete payment of the amount of consideration for sale. We – the party of the second part shall sign to include the amount of consideration for sale paid today in the total consideration for sale and get title of the property cleared at our own expense and risk. At the time of putting signature and executing sale-deed of the property, we – the party of the second part and our descendants, fore-bearers, heirs shall give our signature and consent and shall execute agreement and affidavit at the offices of Sub-registrar and Revenue Record, which we – the party of the second part assure and undertake. (2) The property sold to you – the party of the first part is an agricultural land of old tenure having clear and marketable title. However, to examine and ensure title of the land and obtain permissions, we – the party of the second part shall provide original and certified documents, copies and extracts of village form No.7/12, 6-A and 8-A and accounts and other required information in respect of the land to you – the party of the first part and your advocate and we – the party of the second part shall provide complete cooperation in getting signatures when required. (3) No title, share, interest, relation or right of any other party apart from us – the party of the second part bear on the land and there are no tenants on it and we – the party of the second part have not created any encumbrance or charge on it and there are no rights of maintenance or easement on it. Thus, the aforementioned land is clear and has a marketable title. Hence, we, parties of the second part give complete trust, assurance to you, parties of the first part. You, parties of the first part have executed exchange deed after keeping trust on the words and conduct of us, parties of the second part. Before executing the sale deed of the aforementioned land, we, parties of the second part, will not assign possession of the said land to any person, individual or institution, we will not create any charge or encumbrance on the said land, we will not mortgage, sale, gift the said land to anyone, we will not execute exchange deed, agreement, possession receipt, agreement to sell with anyone. We will not commit any act that may cause deficit in the title or the rights of the parties of the first part. Moreover, if it is found that any previous encumbrance, lien or rights that may cause deficit in the title, then it shall be the responsibility of parties of the second part to clear the same. We, parties of the third part i.e giving consent for the aforementioned property, hereby state and abide that the aforesaid land is registered in joint ownership in our name. From that, if seller no.(1) to (11) sell 17659 sq.m. land, then they or their heirs have no objection in that regard and if they raise any objection in future then it shall be considered null and void by this deed of exchange. (4) Revenue, Special cess and all the government, semi government taxes, education tax etc of the aforementioned land are to be borne by the parties of the second part until execution of sale deed and thereafter it shall be paid by the parties of the first part. (5) Sale deed of the aforementioned land has been executed in accordance with the area of form no.7/12. Therefore, it shall be the responsibility of the parties of second part to tally the area of the said land. Moreover, after execution of sale deed for the aforementioned land, parties of the second part shall get the land measured and get the necessary boundaries at the expense of the parties of the first part. During the measurement, upon approval of T.P. scheme, whatsoever change in the area of the final plot shall be binding to all the parties of the first part and we, parties of the second part, undertake that we shall not seek-obtain any additional consideration, compensation. (6) If anyone from the parties fails to comply with the conditions of the exchange deed, the other parties can take support of the Court at the cost and risk of the noncompliant party in order to implement this exchange deed. (7) All the expenses regarding the sale deed i.e stamp, registration fee, advocate fee, drafting fee shall be borne by the purchaser i.e parties of the first part. Details of the land decided to be sold:- Agricultural land under section-43 of the Tenancy Act, vide block no.721, survey no.787, located at village moje: Variyav, sub district: Surat, district: Surat. (7) All the expenses regarding the sale deed i.e stamp, registration fee, advocate fee, drafting fee shall be borne by the purchaser i.e parties of the first part. Details of the land decided to be sold:- Agricultural land under section-43 of the Tenancy Act, vide block no.721, survey no.787, located at village moje: Variyav, sub district: Surat, district: Surat. Area as per 7/12- 35318 sq.m. Assessment: Rs.39.19, new tenure. From this land, 17659 sq.m. land of our share with all its internal and external rights in its entirety. This exchange deed i.e sale deed is executed by the parties of the first and second part voluntarily, after understanding, in fully conscious state, without any intimidation. It is accepted and binding to us and our heirs. Signatures of Sellers with Passport size photographs and Thumb impressions Sigantures of Witnesses and identifiers with Thumb impressions sd/- Mali J. Patel (1) Maniben @ Maliben Daughter of - Koya bhai & Wife of - Jaikishan (1) sd/- illegible (Bharat ...... Patel) 2) sd/- illegible (Ashwin Harilal Patel) 3) sd/- illegible (...illegible............... ) 4) sd/- illegible (...illegible............... ) sd/- Sudha R. Patel (2) Sudha Ramesh Daughter of – Jaikishan sd/- Patel M J (3) Mukesh Jaikishan sd/- Patel M J (4) Nitin Jaikishan LHT – of Divaliben (5) Divaliben Daughter of – Makan Koya Wife of - Ishwarbhai Identified that the LHT is of Diwaliben and she has put it in my presence after reading and understanding the document. Sd/- Parvati Giju Patel @ Deviben sd/- Parvati Gijubhai Patel (6) Parvati Gijubhai Daughter of - Ishwarbhai ROUND SEAL OF NOTARY MANISH J. PATEL SURAT DISTRICT (GUJARAT) GOVT. OF GUJARAT sd/- Shantilal Ishwarbhai (7) Shantilal Ishwarbhai sd/- Sudha Ramesh (8) Sudhaben Rameshbhai Daughter of - Ishwarbhai sd/- Hansa Thakorbhai (9) Hansaben Thakorbhai Daughter of - Ishwarbhai sd/- Kokila Satish @ Kalpna (10) Kokila Satish Daughter of - Ishwarbhai sd/- Ramila Balvant (11) Ramilaben Balvantbhai Daughter of - Ishwarbhai Signatures of Purchasers with Passport size photographs and Thumb impressions Sd/- Upendra P. Patel NOTORIAL STAMPS OF Rs. 20/- ( Rs. 5/- x 4 stamps) BEFORE ME SD/- ILLEGIBLE 6TH APRIL 2013 [only vendor no. 1 to 11 and Purchaser & Witness no. 3 & 4 signed before me] (Total Page – 34) Register Serial no. 20/- ( Rs. 5/- x 4 stamps) BEFORE ME SD/- ILLEGIBLE 6TH APRIL 2013 [only vendor no. 1 to 11 and Purchaser & Witness no. 3 & 4 signed before me] (Total Page – 34) Register Serial no. 493 / 2013 Date : 6 APR 2013 My Commission Expires on 7th February, 2015 Legal heirs of late Palibeen - widow of Ramu Ranchhod ……………………………….. (1.1) Jasu Ramubhai Patel .................................... (1.2) Nagin Ramubhai Patel .................................... (1.3) Amba Ramubhai Patel Sd/- Ishwar R. Patel (2) Ishwar Ranchhodbhai (Concent giver for Sale Deed ) Today, we have received Rs. 50,00,000/- (Rupees Fifty Lacks) Cash against consideration amount of Sale Signatures (on Revenue Stamps) 1) sd/- Maliben J. Patel 2) sd/- Parvatiben Gijubhai Patel We have received Rs. 22,13,000/- (Rupees Twenty Two lacks Thirteen Thousand) Cash – Today, on 07/04/2013 Signatures 1) sd/- Patel M. J. 2) sd/- Parvatiben Gijubhai Patel 9.3. The appellant – orig. plaintiff filed an application for interim relief by way of Exh.5. After the notice was served with regard to the suit as well as Exh.5, the respondents - defendants chose not to file reply and their right to file the reply came to be closed by the Court below. 9.4. The trial Court rejected the application for interim relief below Exh.5 on the ground that there is no prima-facie case and balance of convenience in favour of the plaintiff. The plaintiff has therefore come in Appeal before this Court by way of the present Appeal from Order against the impugned order dated 25.03.2021. The defendants have not filed their affidavit-in-reply to Exh.5 and the defendants – respondents have relied upon the written statement filed by them. The averments made in the plaint as well as Exh.5 are therefore to be accepted as they are. According to the appellant - plaintiff, there is an agreement to sale dated 06.04.2013 in his favour. The execution of the said agreement to sale is unchallenged. The payment of consideration is reflected in the agreement itself. 9.5. It is the case of the defendants that the plaintiff has not accounted for the source of money. The said submission cannot be considered at this stage, as there is absence of any pleadings on the part of the defendants. There is no affidavit denying the said fact by the defendants before the Court below. 9.6. 9.5. It is the case of the defendants that the plaintiff has not accounted for the source of money. The said submission cannot be considered at this stage, as there is absence of any pleadings on the part of the defendants. There is no affidavit denying the said fact by the defendants before the Court below. 9.6. The trial Court held that in absence of division of the land, no specific performance could be granted. In view of this Court, the plaintiff can claim specific performance of alleged undivided half share in the suit property. There is no bar for execution of the sale deed for undivided half share. 9.7. It is further contended by the respondents – original defendants that the agreement to sale is not legal and valid, in view of breach of Section 43 of the Tenancy Act. According to the plaintiff, the land is already converted into old tenure land. In view of this Court, the validity of the said agreement to sale cannot be decided at this stage. The suit is required to be tried. 9.8. It is further contended by the respondents – orig. defendants that the agreement to sale is not registered. The ratio as laid down by this Court with respect to the above-referred contention read thus: (a) This Court in First Appeal No. 823 of 1986, reported in 1987 (1) GLH (U.J.) 22, extensively considered the said submission and held that the suit of plaintiff could not fail on the ground of compulsory registration introduced by amendment in Section 17 by the Gujarat Act 7 of 1982. (b) This Court in a case of Taufik Idrishbhai Patel (Ganchi) v. Nurabhai Alibhai Momin (Bhagat) reported in 2021 (1) GLH 569, held as under: “7. Having heard the arguments advanced by the learned advocates for the respective parties so also perusing the impugned order below exh. (b) This Court in a case of Taufik Idrishbhai Patel (Ganchi) v. Nurabhai Alibhai Momin (Bhagat) reported in 2021 (1) GLH 569, held as under: “7. Having heard the arguments advanced by the learned advocates for the respective parties so also perusing the impugned order below exh. 5 dated 26.02.2020, it appears that the learned trial Judge has arrived at a conclusion in paragraph 8 of the impugned order to the effect that since the so-called agreement to sell is unregistered one and when the same is not even notarized, prima facie, the same cannot be considered as a legal and valid document vis-a-vis the fact that, there is alternative prayer made by the plaintiff - appellant herein to refund the amount of Rs.65 lakh with interest, no irreparable loss would cause to the plaintiff – appellant and hence, the application exh. 5 is not required to be entertained. 7.1 In the case on hand, it is an undisputed fact that the so-called agreement to sell is a non-registered document and as referred to herein above, the learned trial Judge has rejected the application exh. 5 on that count. In this regard, section 49 of the Registration Act, 1908 is relevant, which speaks thus: “49. Effect of non-registration of documents required to be registered. 5 on that count. In this regard, section 49 of the Registration Act, 1908 is relevant, which speaks thus: “49. Effect of non-registration of documents required to be registered. —No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall— (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.] ” emphasis supplied 7.2 A bare perusal of section 49 of the Registration Act reveals that discretion is vested in the Court to receive an unregistered document as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. 7.3 In this regard, it would be apt to refer the to decision of this Court in Kaushik Rajendra Thakore (supra), as relied by the learned advocate for the appellant, more particularly, Head Note 'B' of the same, which reads as under: “(B)Registration Act, 1908 – S. 17 as amended by Gujarat Act 7 of 1982 – S. 49 – As laid down in proviso to S. 49 of the Act, the suit of the plaintiff would not fail on the ground of compulsory registration introduced by amendment to S. 17 by Gujarat Act, 7 of 1982. A new contention is advanced by the learned advocate for the appellant that Section 17 of the Registration Act, 1908, is amended by Gujarat Act 7 of 1982, which makes the instruments which purport or operate to effect any contract for transfer of immovable property compulsorily registrable by adding Clause (aa) therein. A new contention is advanced by the learned advocate for the appellant that Section 17 of the Registration Act, 1908, is amended by Gujarat Act 7 of 1982, which makes the instruments which purport or operate to effect any contract for transfer of immovable property compulsorily registrable by adding Clause (aa) therein. The learned advocate for the appellant submitted that in view of the amendment introduced by Gujarat Act 7 of 1982, the amendment is given retrospective effect by Section (1A) of the Gujarat Act 7 of 1982, the result of which is that the agreement to sell in question (Exhibit 29) must be deexhibited, with the further result that it would be devoid of any legal effect and the plaintiff would be de-barred from basing any cause of action on such an agreement to sell. However, the answer to this contention is found in Section 49 of the Registration Act, 1908, which we reproduce below to appreciate its full effect: “49. No document required by section 17 (or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall— (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1982, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1977 (3 of 1977) or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.) ” The proviso to Section 49 of the Registration Act makes it abundantly clear that the suit of the plaintiff would not fail on the ground of compulsory registration introduced by amendment to Section 17 by Gujarat Act 7 of 1982. This contention was not originally raised in the trial proceedings, but we permitted the learned advocate for the appellant to argue on this contention, as it is purely a question of law. This contention was not originally raised in the trial proceedings, but we permitted the learned advocate for the appellant to argue on this contention, as it is purely a question of law. We reject the same contention, however, by relying on the proviso to Section 49 of the Registration Act, 1908.” 7.4 In the aforesaid case, this Court, by relying upon proviso to section 49 of the Registration Act, rejected the contention of the learned advocate for the appellant therein that by virtue of Gujarat Act 7 of 1982, the instruments which purport or operate to effect any contract for transfer of immovable property compulsorily registrable by adding Clause (aa) therein. 7.5 Yet in another decision in Rajiv Maheshkumar Mehta (supra), as relied by the learned advocate for the appellant, this Court has, in the similar set of facts and circumstances to that of the present one, relying on the aforesaid decision of this Court in Kaushik Rajendra Thakore v. Allied Land Corpn. and Others, 1987 (1) GLH (U.J.) 22 vis-a-vis other decisions, has observed in paragraph 10 of the same as under: “10. In the above view of the matter, this Court is of the opinion that the trial Court erred in dismissing the temporary injunction application filed by the plaintiff. The trial Court appears to have arbitrarily exercised its discretionary powers in refusing to grant temporary injunction as prayed by the plaintiff in his application and it can safely be said that the discriminatory order passed by the trial Court is perverse in nature, which warrant interference by this Court .” emphasis supplied 7.6 In another decision relied by the learned advocate for the appellant, again relying on the aforesaid decision of this Court in Kaushik Rajendra Thakore (supra), this Court has held that the learned trial Court has committed an error in refusing the injunction as prayed for. 7.7 Thus, pursuant to the facts and circumstances of the case on hand vis-a-vis on perusal of the aforesaid settled legal position it is abundantly clear that registration of document is not sine qua non for receiving the same as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1977 (3 of 1977) or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. So far as the Title Clearance Certificate as well as the affidavit of Laxmanbhai Nathabhai Mer suggesting the agreement to sell to be a fraudulent one are concerned, the same is a question of trial and at this stage, this Court needs not to go into it. The fact remains that the application exh. 5 is rejected on the ground of non-registration of the said agreement to sell, which, in view of the discussion made in the preceding paragraphs of this judgment, appears to arbitrary, perverse, unjust and against the settled principles of law. 7.8 The trial Court concerned has also observed that in view of alternative prayer in suit, temporary injunction (application exh. 5) is not required to be granted. In this regard, if section 29 of the Specific Performance Act, 1963 is seen, it goes to say that, a plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly. Thus, by virtue of this provision, a plaintiff can very well make alternative prayer in a suit for specific performance, however, for such a prayer, temporary injunction is not barred under the law in a fit case. Further, under the provisions of section 21 of the Specific Relief Act, in a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. Further, under the provisions of section 21 of the Specific Relief Act, in a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. Accordingly, considering the facts and circumstances of the case on hand vis-a-vis the settled legal position, in the opinion of this Court, present appeal merits favourable consideration.” In view of above, a suit qua unregistered agreement to sale is maintainable. 10. This Court while deciding Appeal from Order is required to consider the prima-facie case, balance of convenience and irreparable loss / injury, which may be caused to either of the parties. In view of this Court, the appellant - plaintiff has a primafacie case with subsisting agreement to sale dated 06.04.2013, the balance of convenience is also in favour of the appellant – plaintiff. 11. In view of this Court, in the interest of justice, the respondents – orig. defendants are directed that if the defendants were to create any third party right, the same shall be subject to the final outcome of the suit being Special Civil Suit No. 306 of 2018 pending before the Court below and the respondents-defendants are further directed to inform the same to the Court below. 12. With the above directions, the trial Court shall consider the expeditious hearing of the Suit in accordance with law. The parties are directed to cooperate in the suit proceedings. The findings arrived at by this Court are only with respect to the adjudication of the present Appeal from Order and the same are prima-facie in nature. That no right, title or interest of the suit property / suit land is adjudicated by this Court, and therefore, the Court below is directed to decide the suit on its own merits in accordance with law, without being influenced with the observations made in the present order. 13. In view of the above, the order passed by the 13th Additional Senior Civil Judge, Surat in Special Civil Suit No. 306 of 2018 below Exh.5 is quashed and set aside. The present Appeal from Order stands partly allowed, to the aforesaid extent. The connected Civil Application/s also stand/s disposed of. No order as to costs.