HEIRS OF HIRABHAI RAICHANDBHAIKAIDVA(PATEL)-LAXMICHAND HIRAB Vs. HEIRS OF VIRCHANDBHAI @VIRABHAI HIRABHAI KAIDVA(PATEL)

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India challenges judgment and order dated 29-3- 2012 passed by the learned Principal District Court, Banaskantha at Palanpur in Civil Misc. Appeal No.31 of 2011 whereby order dated 30-9-2011 passed below application Ex.5 in Regular Civil Suit No.142 of 2009 by learned Principal Senior Civil Judge, Palanpur, granting ad-interim injunction was set aside.

(2.) Facts in short as arising from the present petition are that a suit being Regular Civil Suit No.142 of 2009 was filed by the petitioners-original plaintiffs for a declaration and permanent injunction that land bearing Revenue Survey No.1047/1/p/3 (old No.10471) of Moje Palanpur Kasba be declared as undivided ancestral joint property of the plaintiffs as well as defendants and that the mutation of Revenue Entry No.1020 dated 21-4-2009 and certified by the Deputy Mamlatdar on 18-6-2009 is illegal. Along with the suit, plaintiffs also filed an application at Ex.5 praying for interim injunction restraining the defendants from transferring, selling, mortgaging or creating any third party right in any manner. The trial court granted ad-interim injunction on 23-11-2009. The defendants filed their written statement at Ex.30. The plaintiffs also filed rejoinder at Ex.35. The trial court vide order dated 10-5-2010 allowed the application at Ex.5. Being aggrieved by the same, the defendants preferred Civil Misc. Appeal No.12 of 2010 before the District Court. The District Court considering the materials placed before it remanded the matter for fresh hearing and disposal vide order dated 12-7-2011. Thereafter, the petitioners filed an application Ex.77 before the trial court on 29-8-2011 praying that the original banakhat in possession of the petitioners may be sent for opinion of handwriting expert of FSL, which was opposed by the defendants by written reply Ex.82 contending inter alia that stage of evidence has not come yet. Although said application Ex.77 is pending, the trial court passed order on 30-9-2011 at Ex.5 observing that opinion of handwriting expert and other additional materials are subject to further evidence and after affording opportunity of fresh hearing confirmed the order dated 10-5-2010 passed below Ex.5. The respondents herein challenged the said order dated 30-9-2011 by way of Civil Misc. Appeal No.31 of 2011 before the District Court. Said appeal was allowed and order dated 30-9-2011 passed below Ex.5 was quashed and set aside vide judgment and order dated 29-3-2012. Hence, the present petition by the petitioners-original plaintiffs.

(3.) Heard learned Senior Advocate,Mr.B.B.Naik with learned advocate, Mr.Mehul H.Rathod for the petitioners-original plaintiffs and learned counsel Mrs.Ketty A.Mehta for learned advocate, Ms.Archana Acharya for the respondents-original defendants.