Kashyap Mohanbhai Marakna vs Mohanbhai Panchabhai Marakna

By way of this writ petition under Article 227 of the Constitution of India, the petitioner - original plaintiff has challenged order dated 11.12.2013 passed below injunction application Exh.5 in Regular Civil Suit No. 7 of 2013 by learned Principal Civil Judge, Bagsara as well as order dated 29.10.2018 passed below Exh.24 in Civil Misc. Appeal No. 4 of 2014 by learned 4th (Ad­hoc) Additional District Judge, Amreli.

2. Rule. Learned advocate Mr. Bhuvnesh Rupera waives service of notice of rule on behalf of the respondents.

3. Precisely, the facts of the case may be stated that the plaintiff was one of the coparceners of the family belonging to the defendants and is predecessor thereon. The defendant father inherited the agricultural land from forefather and as the plaintiff could not produce the record of right Page 1 of 3 Downloaded on : Mon Jan 06 21:03:46 IST 2020 C/SCA/1898/2019 ORDER indicating the same, consequently solely based upon that aspect, the learned trial court dismissed the application of the plaintiff seeking temporary injunction restraining the original defendants from selling, mortgaging or transferring the suit property in any manner pending consideration of the suit. Against the said order of learned Civil Judge, the plaintiff carried the matter by way of preferring appeal before the learned District Judge. The learned District Judge, though allowed the plaintiff to produce the revenue record in order to show as to whether the suit land was falling in the hand of the plaintiff as ancestral or not, without considering further the same straightway recording the same reason, dismissed the application seeking temporary injunction.

4. Heard learned advocate Mr. Zalak Pipalia for the petitioner and learned advocate Mr. Bhuvnesh Rupera for the respondents.

5. Having heard learned advocates for the respective parties and on overall consideration of the matter, this Court is of the prima facie view that the land in question appears to be ancestral in nature and there was no harm in granting injunction application pending consideration of the suit restraining the defendants from selling, mortgaging or transferring the suit property in any manner pending consideration of the suit. Therefore, without entering into the merits of the case or recording any finding, order dated 11.12.2013 passed below Page 2 of 3 Downloaded on : Mon Jan 06 21:03:46 IST 2020 C/SCA/1898/2019 ORDER injunction application Exh.5 in Regular Civil Suit No. 7 of 2013 by learned Principal Civil Judge, Bagsara as well as order dated 29.10.2018 passed below Exh.24 in Civil Misc. Appeal No. 4 of 2014 by learned 4th (Ad­hoc) Additional District Judge, Amreli are quashed and set aside. The injunction application Exh.5 filed in Regular Civil Suit No. 7 of 2013 by the petitioner - original plaintiff is allowed with a clear direction to the learned trial court to expedite the suit and complete the trial & hearing within a period of one year.

6. In view of above, the present writ petition is allowed.

Rule is made absolute to the aforesaid extent.

(R.P.DHOLARIA, J) chandrashekhar Page 3 of 3 Downloaded on : Mon Jan 06 21:03:46 IST 2020