VAJIBEN KHIMABHAI Vs. JYOTSANABEN NARESHBHAI KARODIYA

JUDGEMENT

(1.) Heard learned Advocate Mr. Rushabh H. Munshaw on behalf of the petitioners and learned Advocate Mr. Sandeep R. Limbani for the respondent No.1.

(2.) At the outset, it is required to be noted that what is challenged by way of this writ petition is judgment and order passed by the District Court, Rajkot, dtd. 30/4/2018, whereby an order of the learned Civil Court dtd. 15/9/2017, whereby an application under Exh.5 for grant of interim injunction had been rejected, has been set aside by the learned Lower Appellate Court, and whereas interim injunction as prayed for by the original plaintiff in application below Exh.5 had been granted. As noted hereinabove, the judgment and order being of 30/4/2018 and whereas the present petition being filed immediately thereafter in the month of June, 2018, thereafter, it appears that though the matter had been listed on various dates, the matter had not been heard. Thus, only on the ground of the order having remained unchallenged for more than four and half years, in the considered opinion of this Court, no interference is warranted.

(3.) Inspite of the above observations, this Court has heard the learned Advocates for the respective parties and whereas learned Advocate Mr. Munshaw on behalf of the petitioners would assail the impugned judgment and order passed by the learned District Judge inter alia on the ground that the learned District Judge, had proceeded on the basis of the assumptions and presumption and whereas the learned District Judge had misapplied the law and whereas according to learned Advocate Mr. Munshaw, the learned District Judge had also without any leading of evidence, come to certain conclusions, which would be of the nature of finally deciding the suit in favour of the plaintiff. According to the learned Advocate for the petitioners, the civil suit had been preferred by one Jyotsanaben, who is daughter of one Ratanben Khimabhai and whereas the suit in question had been filed two years after the demise of Ratanben. Learned Advocate would submit that Ratanben being one of the three daughters of one Khimabhai, upon the demise of Khimabhai, certain partitions had been entered into between the family members, more particularly such partitions having taken place in the year 1977, and whereas such partitions had also been mutated in the revenue record. Learned Advocate would submit that even later on, the family property had been further divided, as per the agreement of the family members and whereas even such intent of the family members has been mutated in the revenue record, more particularly vide an Entry No. 1194, whereby the family arrangement dtd. 10/8/2002 has been incorporated in the revenue record. Learned Advocate would submit that the mother of the original plaintiff having never questioned the family arrangement or the revenue entries, at the relevant point of time or during her lifetime, the suit itself filed after the demise of the mother of the plaintiff was grossly delayed and whereas all these aspects had not been considered by the learned Lower Appellate Court. Learned Advocate would submit that the mother of the original plaintiff having given up her share in the property in question, after her demise it would not have been open for her daughter to question the family arrangement in which her mother was a party and whereas the learned the District Court, without considering all these aspects, had granted interim injunction. Learned Advocate would further submit that the order passed by the learned Trial Court being a well reasoned order, the learned Lower Appellate Court ought not to have set aside the same and ought not to have granted interim injunction in favour of the original plaintiff. Having regard to such submissions, learned Advocate Mr. Munshaw would request this Court set aside the judgment and order passed by the learned Lower Appellate Court.