ORDER : 1. With the joint request of learned senior advocates for the respective parties, this matter is taken up for final hearing. 2. Heard learned senior advocate Mr. Devang Nanavati with learned advocate Mr. Harshadray A. Dave for petitioner and learned senior advocate Mr. Mehul Shah with learned advocate Mr. Vishal C. Mehta for respondent. 3. By way of present petition, the petitioner has prayed for following reliefs: “a) This Honourable Court be pleased to allow this petition. b) This Honourable Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned Order dated 1st December 2023 produced at Annexure A, passed by the District Court, Ahmedabad (Rural) in Civil Misc. Appeal Number 10 of 2023 and declare the same to be null and void and further be pleased to pass consequential orders; c) Pending the admission and final disposal of this petition, this Honourable Court be pleased to stay the execution and implementation of the impugned Order dated 1st December 2023 produced at Annexure A, passed by the District Court, Ahmedabad (Rural) in Civil Misc. Appeal Number 10 of 2023; d) Pending the admission and final disposal of this petition, this Honourable Court be pleased to direct the parties to maintain status quo with respect to the suit properties; e) This Honourable Court be pleased to grant ad-interim relief in terms of para- 7 sub-para- c) and d); f) xxx...” 4. The facts of the case are summarized below:- 4.1 The present petitioner filed a Regular Civil Suit No.133 of 2022 before the learned 4th Additional Civil Judge, Ahmedabad (Rural) for the reliefs of declaration and permanent injunction, the defendant appeared and filed his written statement. The petitioner and the respondent are the real brothers. The petitioner stayed at the United States of America and used to send money to the respondent for purchasing the residential and business properties in the City of Ahmedabad. The petitioner opened NRI Account with the Bank of India at Gandhinagar. In the said account, amount was being deposited by the petitioner. The petitioner also used to send financial help to the respondent as the respondent was serving in social bank on a meager salary. The petitioner opened NRI Account with the Bank of India at Gandhinagar. In the said account, amount was being deposited by the petitioner. The petitioner also used to send financial help to the respondent as the respondent was serving in social bank on a meager salary. The petitioner intended to purchase property at Ahmedabad and appointed the respondent as a power of attorney holder for purchasing the property at Ahmedabad. The petitioner paid the entire sale consideration without the consent and the knowledge of petitioner and executed a sale deed on 16/11/2002 in the joint names of the petitioner and the respondent for the property land bearing Survey No.572 admeasuring 5261 Sq. Mts. situated at Village Sarkhej of Taluka Vejalpur of District Ahmedabad. The said property is known as “Kadri Party Plot” situated at Final Plot Number 18 of TPS No.85 opposite Amber Tower. The sale consideration was paid through the said NRI Account. Another property bearing Plot No.30 admeasuring 811 Square Yards situated at Samir Vihar Society situated at Survey No.28 Hissa No.1 as well as Hissa No.2 situated at Village Maktampura, Taluka City of District Ahmedabad upon which, a construction of ground floor and first floor was existing, was purchased vide registered sale deed dated 06/03/2004 in the names of petitioner and respondent jointly. The consideration was paid by the petitioner. Petitioner thereafter came to Ahmedabad on 04/12/2009 and developed the property being “Kadri Party Plot” in his own name, after obtaining permission in his name. The respondent was permitted to occupy the ground floor of the said property as a care taker of the said premises of the petitioner. 4.2 The respondent filed Special Civil Suit No.110/2021 for the partition and for the share in the income of the said party plot and also sought declaration as to the title and the possession of the bungalow at Samir Vihar Society. Thereafter, the petitioner filed the Regular Civil Suit No.133/2022 before the learned Principal Senior Civil Judge, Ahmedabad (Rural) for reliefs of declaration of title and possession and permanent injunction of the suit properties. 4.3 The learned 4th Additional Civil Judge, Ahmedabad (Rural) on 13/02/2023 partly allowed Exhibit-5 injunction application of the petitioner and directed the status-quo to be maintained by both the parties qua the title and the possession till final disposal of the suit. 4.3 The learned 4th Additional Civil Judge, Ahmedabad (Rural) on 13/02/2023 partly allowed Exhibit-5 injunction application of the petitioner and directed the status-quo to be maintained by both the parties qua the title and the possession till final disposal of the suit. The said order was challenged by the respondent before the learned Principal District Judge Ahmedabad (Rural) by way of Civil Miscellaneous Appeal No.10 of 2023, whereby, the learned 7th District and Sessions Judge, Ahmedabad (Rural) on 01/12/2023 allowed the appeal and set aside the order passed by the learned trial Court below Exhibit-5. 4.4 Learned senior advocate Mr. Devang Nanavati submitted that during the pendency of the suit, the petitioner came to know that the respondent is trying to alienate the suit properties and for that an application dated 23/12/2022 to seek permission of the Collector under the provisions of the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 (for short hereinafter referred to The Act) was filed along with a draft sale deed. It is thus submitted that the intention of the respondent was to create third party rights over the disputed properties. It is further submitted that without the permission of the petitioner, the respondent purchased the said properties in the names of the petitioner and the respondent jointly. The respondent filed a suit for partition being Special Civil Suit No.110/2021 for the properties which are subject matter of present suit. It is also pointed out from the documents, which are placed on record that entire sale consideration has been paid by the present petitioner for purchasing of aforesaid two immovable properties. The learned Trial court while deciding Exhibit-5 has rightly directed both the parties to maintain status-quo qua title and possession of the suit properties. It is also pointed out by the learned senior advocate for the petitioner that even in the Commissioner’s report, which was carried out in the Special Civil Suit No.110/2021 possession of the present petitioner is found. The learned Trial Court has even observed that if the equities change during the pendency of the suit, it would lead to multiplicity of proceedings. It is further submitted that the learned Trial Court has observed the conduct of the respondent during the pendency of the suit. The learned Trial Court has even observed that if the equities change during the pendency of the suit, it would lead to multiplicity of proceedings. It is further submitted that the learned Trial Court has observed the conduct of the respondent during the pendency of the suit. The learned Trial Court has believed that the case of the petitioner and has also believed a prima facie case in favour of petitioner and has partly allowed Exhibit-5 application. During the course of submissions, paper book of Regular Suit Civil Suit No.133/2022 is placed on record and the same is taken on record. 5. Learned senior advocate Mr. Nanavati has further submitted that the learned District Court has erred in disturbing the findings of fact qua prima facie case, balance of convenience and irreparable loss, which was weighed in favour of the present petitioner. While deciding the Civil Miscellaneous Appeal No.10/2023, the learned District Court has undertaken a mini trial of the suit. Being aggrieved with the order dated 01/12/2013, allowing the Civil Miscellaneous Appeal No.10/2023 by the learned 7th Additional District and Sessions Judge (Rural) Ahmedabd, the petitioner is before this Court. 6. In support of the submissions, learned senior advocate for the petitioner has placed reliance upon the following decisions. “(i) Dalpat Kumar and Another Versus Prahlad Singh And Others reported in (1992) 1 Supreme Court Cases 719. (ii) Maharwal Khewaji Trust (Regd.), Faridkot Versus Baldev Dass reported in (2004) 8 Supreme Court Cases 488, (iii) Wander Ltd. And Another Versus Antox India P. Ltd. reported in 1990 Supp Supreme Court Cases 727; (iv) Baldev Singh Versus Smt. Darshani Devi and another reported in 1993 SCC Online HP 12, (v) Vinubhai Virajibhai Togadiya Versus Nileshbhai Vallabhbhai Patel reported in 2023 SCC Online Guj 3122.” 7. On the other hand, learned senior advocate Mr. Mehul Shah for the respondent has vehemently objected in granting of the present petition and supported the decision of the learned District Court in allowing the appeal. The submissions of learned senior advocate for the respondent are that the respondent being a co-owner of the properties in question has every right to alienate the undivided portion of the properties under dispute. It is further submitted that there is gross delay in claiming an equitable relief of injunction as the sale deeds are of 16/11/2002 and 06/03/2004 respectively. The submissions of learned senior advocate for the respondent are that the respondent being a co-owner of the properties in question has every right to alienate the undivided portion of the properties under dispute. It is further submitted that there is gross delay in claiming an equitable relief of injunction as the sale deeds are of 16/11/2002 and 06/03/2004 respectively. The petitioner has claimed an equitable relief of injunction after the lapse of a period of more than about 18 years. The names of the petitioner and the respondent have been mutated in the revenue record pursuant to said sale deeds. The petitioner never raised any objection regarding either having a sale deed in joint names or regarding mutation of entries pursuant to the sale deeds. Further submissions of the learned senior advocate of the respondent are that the learned District Court has rightly observed that the respondent being an owner of an half of the portion of the said property, the respondent has a right to alienate his part of the property. Even Section 44 of the Transfer of Property Act also contemplates such alienation as permissible. The learned Trial Court as well as learned District Court both have concurrently found that the properties stand in the names of the petitioner and the respondent jointly. Learned senior advocate for the respondent has also pointed out that in the application dated 23/12/2022, the undivided share, which is permissible under Section 44 of the Transfer of Property Act, 1882, was sought to be alienated. The respondent is legally entitled to alienate his half undivided share in the properties. Learned senior advocate Mr. Shah has relied upon Section 4 of the Prohibition of Benami Property Transactions Act, 1988, which is reproduced hereunder: “4 Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) xxxxxx” 8. The learned senior advocate for the respondent has submitted that no suit or claim to enforce any right in the property held benami against person in whose name such properties held can be initiated. (2) xxxxxx” 8. The learned senior advocate for the respondent has submitted that no suit or claim to enforce any right in the property held benami against person in whose name such properties held can be initiated. In the present case, the suit of the original plaintiff is hit by the provisions of Section 4 of the Prohibition of Benami Property Transactions Act, 1988. 9. The learned Trial Court has prima facie believed that the fact of joint ownership and joint possession of both the parties. The learned District Court has rightly allowed the appeal and reversed the order below Exhibit-5. Further submissions of the learned senior advocate respondent has harped upon the conduct of plaintiff. By making submission that though, the suit may be within a period of limitation, however, while claiming an equitable relief of injunction, the plaintiff must approach the Court within a reasonable time. The suit came to be filed after a suit for partition was filed by the present respondent against the petitioner and till then, the plaintiff remained silent for the alleged claim of sole ownership of the suit properties. The respondent is in possession of the suit properties ever since the execution of the sale deeds. Learned senior advocate further submitted that applying the principle that one co-owner cannot claim injunction against the another co-owner in the suit, the order of learned District Court does not require any interference. The prayers are not for the cancellation of the sale deeds. In absence of a challenge of the sale deeds, plaintiff is not entitled an equitable relief of injunction, more particularly, after lapse of more than 18 years. 10. Learned senior advocate for the respondent has referred and relied upon the following decisions, “(i) Patel Rajnikant Dhulabhai Versus Patel Chandrakant Dhulabhai reported in 2004 (0) AIJEL-HC 209325. (ii) Vishram @ Prasad Govekar Versus Sudesh Govekar reported in 2016 (0) AIJEL-SC 59710. (iii) Gajara Vishnu Gosavi Versus Prakash Nanasahed Kamble reported in 2009 (0) AIJEL-SC 47786. (iv) Gordhanbhai Tribhovandas Patel Versus Chhitubhai Tribhovandas Patel reported in 1994 (0) AIJEL-HC203778. (v) Mandali Ranganna Versus T. Ramachandra reported in 2008 (0) AIJEL-SC 41272. (vi) Veetrag Holdings Private Limited Versus Gujarat State Textile Corporation Limited reported in 1995 (0) AIJEL-HC 213663.” 11. (iii) Gajara Vishnu Gosavi Versus Prakash Nanasahed Kamble reported in 2009 (0) AIJEL-SC 47786. (iv) Gordhanbhai Tribhovandas Patel Versus Chhitubhai Tribhovandas Patel reported in 1994 (0) AIJEL-HC203778. (v) Mandali Ranganna Versus T. Ramachandra reported in 2008 (0) AIJEL-SC 41272. (vi) Veetrag Holdings Private Limited Versus Gujarat State Textile Corporation Limited reported in 1995 (0) AIJEL-HC 213663.” 11. In rejoinder, the learned senior advocate for the petitioner has referred to Section 2(9)(A)(iv) of the Prohibition of Benami Property Transactions Act, 1988, which is reproduced: “2. (9) "benami transaction" means,-- (A) a transaction or an arrangement-- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by-- except when the property is held by- (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or” By relying upon the aforesaid provisions, learned senior advocate for the petitioner has submitted that in the present case, the petitioner and the respondent are real brothers and the present case falls within the exception to Sub-clause (iv) of Section 2(9)(A) of Prohibition of Benami Property Transactions Act, 1988 and the suit is maintainable. 12. Regarding the maintainability of the suit on the challenge of the controversy of Benami Transactions, this Court is not entering into such controversy as that can only be considered by the trial Court after leading the respective evidences by the parties. 13. On perusal of the documents, which are placed on record and having considered the submissions canvassed by the learned senior advocates for both the sides, a limited issue before this Court is that whether the petitioner-defendant can be permitted to alienate the property under dispute during the pendency of the suit. While deciding injunction application, the well-known three limbs of granting or rejecting an equitable relief, are to be considered only. While deciding injunction application, the well-known three limbs of granting or rejecting an equitable relief, are to be considered only. Prima facie case, balance of convenience and irreparable injury to the party seeking reliefs are the vital three limbs to be considered by the Court. The stage of deciding injunction application is a fluid stage of the trial and the Court has only to consider the averments made in the application and affidavits in support of injunction application. It is not expected from the learned Trial Court to enter into a mini trial of the contention raised by in the suit. The plaintiff has to only establish a strong prima facie case, balance of convenience and irreparable injury in his favour. In a catena of decisions, it has been laid down by the Hon’ble Apex Court, prima facie case is not to be confused with prima facie title. The prima facie title can only be established on evidence at the trial. The Court has to consider that if the party is allowed to alienate or create third party right over the suit property, it would lead to further complication and multiplicity of proceedings. Though, the aspect of delay is a vital ingredient in refusing injunction. In the present case, the undisputed fact is that the sale deeds of 2002 and 2004 stand in the name of plaintiff and defendant jointly. On prima facie appreciation of the titles, what can be seen is that both the parties are holding the ownership rights jointly and the normal presumption is that the possession goes with the title and applying the said presumption in the facts of the present case, possession can be presumed to be a joint possession and more particularly, a claim in the suit is for the possession of the ground floor of the property situated in Samir Vihar Society from the defendant. So far as the possession of the party plot is concerned, which is known as “Kadri Party Plot”, considering submissions of both the learned senior advocates, it is an admitted fact that the said plot is a party plot and which is open. However, the sale deeds of said property stand in the name of the plaintiff and the defendant jointly. The learned District Court has wrongly disturbed the prima facie findings of the learned Trial Court. However, the sale deeds of said property stand in the name of the plaintiff and the defendant jointly. The learned District Court has wrongly disturbed the prima facie findings of the learned Trial Court. The learned District Court has not considered the factual backgrounds of the institution of the Regular Civil Suit No.133/2022. The cause for the institution of the said suit was the outcome of a partition suit, which was filed by the respondent being Special Civil Suit No.110/2021. Even, during the pendency of the suit, the defendant moved an application for seeking the permission from the learned Collector under the Act. Thus, the conduct of the defendant is such, if defendant is not restrained by an order of injunction, third party right qua title and possession would be created, which would lead to further complication and multiplicity of proceedings. The learned Trial Court has correctly applied the said principles in granting Exhibit-5 application. More particularly, the learned District Court has also failed to appreciate the fact that the suit properties are not partitioned and the alleged undivided share in the suit property is yet not finally adjudicated by the Court. 14. In the totality of the facts and circumstances of the case and on careful consideration of the decisions, which have been relied upon by both the sides, this Court finds that the present petition requires consideration and the same is allowed. This Court is, prima facie, of the view that if the order dated 13/02/2023 passed by 4th Additional Civil Judge, Ahmedabad (Rural) in Regular Civil Suit No.133/2022 is restored till the final hearing and disposal of Regular Civil Suit No.133/2022, the ends of justice would be served. More particularly, in the peculiar facts and circumstances of the case and considering the rival submissions, the defendant is restrained from selling, alienating or creating any charge over the suit properties qua title and possession of the suit properties till final disposal of the Regular Civil Suit No.133/2022. The decision of the learned 7th Additional District and Sessions Judge, Ahmedabad (Rural) is hereby quashed and set aside and Civil Miscellaneous Appeal No.10/2023 is hereby dismissed. Accordingly, this petition is allowed. 15. It is made clear that the learned trial Court shall not be influenced by the observations made hererinabove while deciding the Regular Civil Suit No.133/2022. FURTHER ORDER Learned senior advocate Mr. Accordingly, this petition is allowed. 15. It is made clear that the learned trial Court shall not be influenced by the observations made hererinabove while deciding the Regular Civil Suit No.133/2022. FURTHER ORDER Learned senior advocate Mr. Mehul Shah for the respondent has requested for staying of the order. Per contra, learned senior advocate Mr. Devang Nanvati has raised objection in granting stay of the order. In view of above, the order is stayed for three weeks.