Gujarat High Court Case Information System
Print
AO/420/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 420 of 2009
=========================================================
RUPAPRA
RAMESHBHAI KARSAN - Appellant(s)
Versus
VALIBEN
KHODABHAI MUNGARA & 2 - Respondent(s)
=========================================================
Appearance
:
MR
VIVEK N MAPARA for
Appellant(s) : 1,
MR NEHAL R JOSHI for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/02/2011
ORAL
ORDER
1. Heard
learned advocates for the parties. With the consent of the parties,
the matter is taken up for final hearing today.
2. The
present Appeal from Order has been preferred by the appellant being
aggrieved by the order dated 15.10.2009 passed by the Additional
Senior Civil Judge, Jamnagar below Ex. 5 in Special Civil Suit No. 67
of 2008 whereby the interim injunction application of the appellant
was rejected.
3. It
is the case of the appellant that he preferred Civil Suit being
Special Civil Suit No. 67 of 2008 in the Court of Principal Senior
Civil Judge, Jamnagar for declaration and partition of his share in
the ancestral property. The appellant preferred an interim injunction
application Ex. 5 and the same was rejected by the trial court vide
order dated 15.10.2009.
4. Mr.
Mapara, learned advocate appearing for the appellant has submitted
that the trial court has failed to appreciate the fact that the
affidavit was challenged before the competent authority and the
revenue entry thereof was cancelled. He has submitted that despite
holding that the appellant is a co-sharer in the suit property the
trial court rejected the injunction application.
5. As
a result of hearing and perusal of records, this court is of the
opinion that the interim injunction application was rejected by the
trial court on the ground that though the appellant is a co-sharer in
the suit property, he had relinquished his rights in the said
property by virtue of a Notarized Affidavit (mark 21/2) which is not
challenged by the appellant. Hence the appellant having relinquished
his right in the suit property by executing a notarized affidavit is
not entitled to injunction. However, it appears from the records
that the affidavit is under challenge before the competent authority
and the revenue entry is cancelled. This position is not disputed by
learned advocate for the defendant. In such an event, the said
ground shall not be sustainable for rejecting the injunction
application. Thus, the appeal deserves to be allowed.
6. For
the foregoing reasons, the order dated 15.10.2009 is hereby quashed
and set aside. Since the revenue entry was cancelled by the
authority which is subject matter of appeal, both the sides shall
maintain status quo as on today pending the suit. It is made clear
that if an application for expediting the suit is filed by the
appellant, the trial court shall consider the same in accordance with
law. Appeal is allowed to the aforesaid extent.
(K.S.
JHAVERI, J.)
Divya//
Top