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CA/5146/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 5146 of 2011
In
APPEAL
FROM ORDER No. 168 of 2011
=========================================================
DEVANGBHAI
DINESHBHAI SHAH - Petitioner(s)
Versus
GAUTAMBHAI
CHANDUBHAI PATEL & 10 - Respondent(s)
=========================================================
Appearance :
MR
PERCY KAVINA SR. ADVOCATE WITH MR PREMAL R JOSHI
for Petitioner(s) : 1,
None
for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5 - 11,
11.2.1, 11.2.2,11.2.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/04/2011
ORAL
ORDER
1. Rule.
Learned counsel Mr. S.P. Majmudar waives service of rule on behalf of
the opponents.
2. The
applicant herein purchased the land bearing Survey No. 194 situated
in mouje Village Sanand, Taluka Sanand, District Ahmedabad from
opponent nos.2 to 11 herein for a total consideration of Rs.1.22
Crores on 03.10.2009. However, being unaware about the said fact,
opponent nos.1/1 to 1/5 herein filed a suit being Special Civil Suit
No.467/2009 before the Court of learned Principal Civil Judge,
Ahmedabad (Rural) for a declaration that the said land is an
ancestral property and that they are having 50% share in it along
with application Exhibit-5 for interim injunction. Subsequently, the
applicant was impleaded as a party-defendant in the said suit. The
said application Exhibit-5 was allowed by the Court below vide order
dated 15.04.2011 and the applicant came to be restrained from
selling, transferring, mortgaging or assigning the suit property in
any manner whatsoever. Being aggrieved by the same, the applicant has
preferred the appeal from order and this application for stay of the
impugned order passed below application Exhibit-5.
3. Heard
learned Sr. counsel Mr. Percy Kavina appearing with Mr. Premal Joshi
for the applicant and learned counsel Mr. S.P. Majmudar for the
opponents.
4. At
the instance of learned counsel for the respondents, the Court has
passed this reasoned order.
5. Opponent
nos.1/1 to 1/5, original plaintiffs, have claimed right over the suit
property in the capacity of being the legal heirs of deceased
Gulabchand Bhaijibhai, who expired on 19.10.1942. After the death of
Gulabchand Bhaijibhai, the names of his two sons, viz. Somabhai
Gulabchand and Ambaram Gulabchand, were entered in the Village Form
No.6. Somabhai Gulabchand expired on 02.06.1953 whereas, Ambaram
Gulabchand, grand-father of opponent nos.1/1 to 1/5 herein and father
of deceased Chandubhai Ambalal Patel, expired on 12.03.1970. After
the death of Somabhai Gulabchand, the suit land stood in the name of
his three sons, viz. Naranbhai, Bhailalbhai and Dashrathlal. At this
juncture, it is pertinent to note that during his life-time, deceased
Ambaram Gulabchand had never claimed any share in the suit property,
which stood, initially, in the name of deceased Somabhai Gulabchand
and subsequently, in the name of his three sons, for the entire
period between 1953 to 1970. The suit in question came to be filed
only in the year 2009 and that to by the grand-sons / grand-daughters
of deceased Ambaram Gulabchand in the capacity of being his legal
heirs. The name of deceased Ambaram Gulabchand was reflected in the
revenue records only in the year 1942. However, after 1942, no where
the name of deceased Ambaram Gulabchand is reflected in the revenue
records. On the other hands, all throughout, the names of original
defendant nos.2 to 10 have been reflected in the revenue records.
6. Prima
facie, both the sides are claiming rights over the suit land on the
basis of the revenue entries. However, admittedly, the possession of
the suit land as of today is with the family members of deceased
Somabhai Gulabchand. Opponent nos.1/1 to 1/5 have not been able to
prove that possession of the suit land is with them. As discussed
herein above, the names of the family members of deceased Somabhai
Gulabchand are also reflected in the revenue records in respect of
the suit land all throughout.
7. The
applicant herein has already made huge investment in the suit land.
Therefore, with a view to protect the interest of both the sides and
since the parties are claiming right over the suit land on the basis
of the revenue entries, the impugned order dated 15.04.2011 is
substituted and the applicant is directed to deposit an amount
equivalent to 50% (fifty percent) of the market value of the suit
land, as per the ‘jantri’ that existed on the date of filing of the
suit, with the ‘Nazir’ of the Court below, within a period of two
months from today and if such deposit is made, then the impugned
order passed below application Exhibit-5 shall stand vacated. On such
deposit being made, the Court below shall invest the entire amount in
Fixed Deposit with any nationalized bank on long term basis and the
same shall be renewed from time to time, without any further orders
in that regard from this Court. The amount of interest on such
deposit shall be accumulated. The entire amount of deposit with
interest shall be subject to the final outcome in the suit pending
before the Court below. With the above observations and directions,
the application stands disposed of. Rule is made absolute to the
above extent with no order as to costs.
[K.
S. JHAVERI, J.]
Pravin/*
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