KANJIBHAI RAVJIBHAI DHOLIYA Vs. RATILAL MULCHANDBHAI PATEL

JUDGEMENT

(1.) Challenge in this Appeal from Order filed under Order 43 Rule 1 (r) of the Code of Civil Procedure is to the order dtd. 6/12/2018, passed in Special Civil Suit No.132 of 2016, by which the Principal Senior Civil Judge, Olpad at Surat, pending the suit the present appellant original defendant No.2 has been restrained in transferring, alienating or by sell of suit land.

(2.) Facts and circumstances giving rise to file the present appeal are that the respondents original plaintiffs have filed a suit for claiming their share from the suit land and prays for its partition, declaration and permanent injunction. The plaintiffs and father of the defendant No.1 were real brothers. The father of the parties and deceased Thakore Mulchandbhai had purchased the suit land by registered sale deed. In 1967, the family settlement agreement came to be executed amongst the parties and accordingly the parties have accepted their share as per the settlement. The dispute arose in relation to land survey No.43, as in a typed written agreement, the one line by hand writing was added to the effect that the land survey Nos.43 would come into share of Thakore Mulchandbhai. Accordingly, the land survey No.43 was mutated in the name of Thakore Mulchandbhai. In the year of 2014, Thakore Mulchandbhai sold the suit land by registered sale deed to the present appellant defendant No.2 and his name also was mutated in the revenue records and later on the revenue authority has rejected the mutation entry No.6776. In the year of 2015, Thakore Mulchandbhai was passed away. The plaintiffs have filed a suit in the year 2016, on the ground that the hand written line added in the typed written family settlement agreement was being added without their consent and whereby the deceased Thakore Mulchand has committed an act of fraud and cheating. So far revenue entry mutated in the year 1972 is concerned, it is pleaded that they are still agree with the family settlement except the share exclusively given to deceased Thakore Mulchand in relation to land bearing Survey No.43 and, therefore, under the guise of execution of the settled agreement, their reply being recorded by the Revenue authority without pointing out the particular share of the disputed land. Thus, the two brothers of the family of late Mulchand Nathabhai claim their share as per Hindu Succession Act .

(3.) At the time of filing the suit, the plaintiffs respondents have prayed interim injunction restraining the purchaser of the land i.e. the present appellant for transferring, alienating the land in any manner.