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AO/11720/2008 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 117 of 2008
With
CIVIL
APPLICATION No. 4232 of 2008
In
APPEAL
FROM ORDER No. 117 of 2008
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HARSHABEN
@ SONALBEN SANJAY BHAI PATEL D/O HARIVADANBHAI - Appellant(s)
Versus
HARIVADANBHAI
PURUSHOTTAMDAS PATEL & 12 - Respondent(s)
==========================================
Appearance
:
MR DEVANG T SHAH for
Appellant(s) : 1,
MR CL SONI for Respondent(s) : 1 - 5, 9,
NOTICE
SERVED BY DS for Respondent(s) : 6 - 8,10 -
13.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 10/11/2008
ORAL
ORDER
1. The
present Appeal from Order is filed by the appellant-original
plaintiff under Order 43 Rule 1(r) of the Code of Civil Procedure
challenging the order passed by the learned 7th Additional
Senior Civil Judge and Judicial Magistrate First Class, Surat dated
24/01/2008 below Exh. 5 in Special Civil Suit No. 243/2007 by which
the learned trial Court has dismissed the application, Exh. 5, which
was submitted by the appellant-original plaintiff for interim
injunction restraining the respondents-original defendants from
transferring, alienating and/or selling the property in question.
2. The
appellant-original plaintiff had filed Special Civil Suit No.
243/2007 for partition of the properties described in the plaint
alongwith the schedule contending interalia that the suit properties
in question are the ancestral HUF properties and in view of the
amendment in the Hindu Succession (Amendment) Act, 2005, she has got
equal right in the ancestral property. The application, Exh. 5 was
opposed by the respondents-original defendants by submitting that in
fact the properties in question have been disposed of and/or
transferred by will executed by their grandfather, Purshotambhai
Hirabhai Patel, which was executed in 1989 and, therefore, respondent
no. 1-original defendant no. 1 has become
the owner and the parties have acted as per the same. It was the
contention on behalf of the appellant-original plaintiff that the so
called will cannot be termed as a will but at the most it can be said
to be a family arrangement. Considering the fact that some of the
properties were already sold much prior to filing of the suit and
after considering the submissions made on behalf of the parties, the
learned trial Court dismissed the application, Exh. 5 by the impugned
order. Hence, the appellant-original plaintiff has preferred the
present Appeal from Order.
3. Having
heard the learned advocates appearing on behalf of the respective
parties and assuming for the sake of argument that the documents,
which has been relied upon by the respondents-original defendants,
which according to them, was a will can be termed as a family
arrangement then in that case also the said family arrangement was in
the year 1989 and the parties were required to act as per the same
since 1989. Considering the facts and circumstances of the case,
more particularly, when some of the properties have already been sold
prior to filing of the suit and considering the documents on record,
when the suit has been filed in the year 2007, in the facts and
circumstances, it cannot be said that the learned trial Court has
committed an error. However, while disposing of the present
Appeal from Order, it is observed that any transfer to be made,
expect the properties, which are sold prior to filing of the suit,
will be subject to ultimate outcome of the suit and after informing
the learned trial Court by purshis with respect to such a transfer.
4.
For the reasons stated hereinabove and without further expressing
any opinion on merits, the present Appeal from Order is dismissed
with the above observation that any transfer herein made, except the
properties which are sold prior to filing of the suit, will be
subject to the ultimate outcome of the suit and as and when the
properties are transferred, the respondents-original defendants shall
inform the learned trial Court by purshis with respect to such a
transfer. If the pleadings are completed, the learned trial Court is
directed to decide and dispose of the suit as expeditiously as
possible. All the parties concerned are directed to cooperate with
the learned Judge for early disposal of the suit. If the pleadings
are not completed, the parties are directed to complete the pleadings
within a period of four months from today. However, it is observed
that the learned trial Court shall decide and dispose of the suit in
accordance with law and on its own merits without in any way being
influenced by the impugned order and the present order as the same is
only at an interim stage.
CIVIL
APPLICATION No. 4232/2008
In
view of dismissal of the Appeal from Order, no order on the Civil
Application.
(M.R.
SHAH, J.)
siji
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