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AO/77/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 77 of 2010
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JUSAB
BACHU MIHYANA
Versus
SULEMAN
UMAR AND OTHERS
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Appearance :
MR
HASIT H JOSHI for the
Appellant
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 04/05/2010
ORAL
ORDER
Heard Mr.Hasit
Joshi, learned Advocate for the appellant original plaintiff.
2. The
appellant before this Court being aggrieved by an order passed below
application Exh.5 in Regular Civil Suit No.8 of 2009 by the learned
Principal Senior Civil Judge, Jamnagar dated 31.12.2009, whereby the
learned Judge was pleased to reject application Exh.5. The learned
Judge has set out in para-1, the case of the plaintiff, which reads
as under:-
[01]. The
plaintiff filed the present suit for partition and permanent
injunction. It is the case of the plaintiff that suit property i.e.
Survey no:49, Survey no:75 and Survey no.: 76 situated in village
Baid Taluka District Jamnagar which are joint family properties and
was previously administered by deceased Umar and plaintiff has never
given up relinquished his right in the suit property and is entitled
1/5th Share in the suit property and is also Co-owner of the suit
property. Therefore plaintiff has filed the present suit for
partition. And by filing Ex: 5 application it is prayed for that the
defendants being restrained not to transfer, assign, sale etc, the
suit property to other party.
The learned
Judge has failed to appreciate that the defendants did not produce
before the Court below the plaint of Regular Civil Suit No.277 of
2005, which was filed by the defendants setting out the pedigree of
deceased Bachubhai Karabhai, in that plaint. It is submitted by the
learned Advocate for the appellant that the plaintiffs or defendants
did not mention the name of the present appellant as heir of deceased
Bachubhai Karabhai and that shows their ill-designs.
3. Assuming for
the sake of argument that the case of the defendants is right that
the present appellant relinquished his right in the suit property in
the year 1964, then also, the plaintiffs and/or defendants in Regular
Civil Suit No.277 of 2005 were under an obligation to show the name
of the present appellant as an heir of deceased Bachubhai Karabhai.
The fact that his name is not shown in the pedigree, shows malafides
on the part of the defendants and therefore, the learned Judge has
committed an error in rejecting application Exh.5 in Regular Civil
Suit No.8 of 2009.
4. The matter
requires consideration.
ADMIT.
Learned
Advocate for the appellant to produce copy of plaint of Regular Civil
Suit No.277 of 2005 along with decree passed therein on record.
(Ravi
R.Tripathi, J.)
*Shitole
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