JIGNASHABEN Vs. LH OF DECD VARDHMANKUMAR

JUDGEMENT

(1.) This petition, inter alia, under Article 227 of the Constitution of India has been filed by the petitioners praying for to quash and set aside the impugned order dtd. 6/2/2021 passed by the learned 2 nd Additional District Judge, Kalol District: Gandhinagar below application Exh. 5 in Regular Civil Appeal No. 20 of 2021. By the said application Exh,. 5, the petitioners - appellants had prayed for to grant status quo qua the suit property pending the aforesaid appeal which is filed against the judgment and order dtd. 18/3/2020 passed by the learned Principal Senior Civil Judge, Kalol, District: Gandhinagar, dismissing the Special Civil Suit No. 48 of 2015 (Old Regular Civil Suit No. 180 of 2010), which was filed by the petitioners - plaintiffs for declaration and permanent injunction.

(2.) Brief facts of the case on hand are that deceased original plaintiff namely Madhuben @ Mrudulaben is the legal heir of deceased Kantilal Chhotalal Shah. That her deceased father had certain properties having joint rights of the parties, situated at Village: Vayana, Taluka: Kalol, District: Gandhinagar, numbered as old Survey Nos. 482/2, 42/1, 83, 86, 616, 627, 138/A, 195, 206/1, 418/3, 622, 501/2 and 620/B, which are newly given block numbers as Block Nos. 40, 59, 752, 767, 160, 618, 243, 487, 756, 609, 213 and 755 (hereinafter referred to as the 'disputed properties'). As per the deceased plaintiff, she and defendant Nos. 1 to 6 are the co-owners of disputed properties having equal undivided share. It is stated by the plaintiff that their common ancestor deceased Kantilal Chhotalal Shah's name was there in the revenue record and after his death, her name and names of ancestor original defendant No. 2 to 4 namely deceased Vimalkumar Kantilal Shah and the name of defendant Nos. 1, 5 and 6 were inserted by inheritance entry into the revenue record. It is further the case of the plaintiff that there was consolidation of survey numbers and as per entry No. 14, survey numbers were consolidated into the block numbers. It is stated that the defendant Nos. 5 and 6 waived their right of share and mutation Entry No. 1048 was effected. It is the say of the plaintiff that she was adult at the time of Entry No. 1048 but her consent and/or signature was not obtained prior to deletion of her name from the revenue record and that, she has not waived her right in favour of defendants. It is stated that the plaintiff was equally entitled for the share with defendant Nos. 5 and 6, her name was entered through Entry No. 1334 against which her nephew filed objections and the dispute case No. 276/7 was arisen before Mamlatdar, Kalol. It is further the case of the plaintiff that Mamlatdar, Kalol passed an order on 31/1/2008 rejecting the Entry No. 1334 against which, she filed RTS Appeal No. 77/08 before the Prant Officer. The plaintiff filed RTS Appeal No. 37/09 challenging the Entry No. 1048 before the Prant Officer, Gandhinagar. She issued Public Notice in the 'Sandesh' daily on 26/12/2007 for declaration of her right as co-sharer. It is further the case of the plaintiff that the defendant Nos. 1 to 4 executed a registered Sale Deed No. 6253 for Block No. 213 in favour of Mukeshbhai Mohanbhai Patel, the defendant No. 9 and Mutation Entry No. 1828 was effected. It is further stated that the plaintiff also filed her objections against Entry No. 1673 which was effected in respect of Block No. 755. It is stated that the defendant Nos. 1 to 4 have, without her consent and signature, falsely executed the sale deed in favour of Mehta Mahendrakumar Popatlal, the defendant No. 7 for Block Nos. 753 and 59 and hence, she filed the suit in question, which was decreed against her against which, appeal is filed in which, an application Exh. 5 praying status quo was preferred, which came to be rejected vide impugned order dtd. 6/2/2021 and hence this petition.

(3.) Heard, Mr. Digant Popat, learned advocate for the petitioners. The learned advocate for the petitioners, with all vehemence at his command, submitted that the impugned order was bad, illegal, perverse and contrary to the facts and evidence on record inasmuch as though all the three ingredient for granting interim injunction viz. prima facie case, balance of convenience and irreparable loss are in favour of the petitioners, the learned first appellate Judge has committed a grave error in rejecting the said application. The learned advocate for the petitioners submitted that it is clear from the order of the revenue authorities that there was no signature of the plaintiff for relinquishing her right in the suit property and though such finding of the revenue authorities is not overruled, the learned appellate Judge failed to take into consideration such an important aspect of the matter. He submitted that the learned first appellate has failed to take into consideration the settled law on the revenue entries to the effect that the same are meant for the fiscal purpose only and no legal rights can be determined on the basis of the mutation entry.