THAKOR BHIKHIBEN Vs. THAKOR MAHESHJI JAVANJI

JUDGEMENT

(1.) The present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure is filed for the purpose of challenging the legality and validity of an order dated 28.12.2018 passed by the learned 2nd Additional Senior Civil Judge, Mehsana below Exh.5 in Special Civil Suit No.18 of 2018 whereby learned Judge has rejected an application for seeking injunction.

(2.) The brief facts leading to the rise of present Appeal from Order are that original plaintiff i.e. appellant has filed a Special Civil Suit No.18 of 2018 for the purpose of seeking declaration and permanent injunction and also for quashing and setting aside the sale documents with respect to the suit land which are described as land bearing Account No.636, Revenue Survey No. / Block No.234, Account No.637, Revenue Survey No. / Block No.233 and Account No.638, Revenue Survey No. / Block No.235, which were agriculture land bearing promulgation entry No.2606. This disputed portion of lands was held by father of the plaintiff Thakor Gandaji Juhaji as an ancestral property and father of the plaintiff died on 04.02.1963. It is the case of the appellant that after death of father in 1963, the plaintiff became entitled by inheritance this portion of land as described above. But according to appellant - plaintiff, with a view to defeat the right of the plaintiff by showing incorrect pedigree in the revenue record, entry was got mutated and certified the same vide entry bearing No.597 dated 15.05.1970. Additionally, even after death of Javanji Gandaji Thakor who died on 21.02.2007 in the similar way the entries were got mutated on 22.11.2010 bearing entry No.2052 with respect to which a grievance is pending. It is further assertion of the appellant-plaintiff that though land was belonging to father of the plaintiff and was coming in joint name, still, the defendants No. 1 and 2 by defrauding the right of appellant - plaintiff sold the land for a sum of Rs.80,00,000/- by registered sale deed on 31.08.2017 bearing registered document No.8154 of 2017 and though there was a specific grievance even that transaction has also been mutated in revenue record, but without hearing the plaintiff even the revenue authorities have also not entertained RTS proceedings bearing Case No.59 of 2017. Though this portion of land, mentioned above, is in the hands of plaintiff in which his right by inheritance is very much reflecting, keeping aside the plaintiff, the suit land had been sold in the year 2017 which has constrained the plaintiff - appellant to bring the suit for seeking declaration, permanent injunction and for setting aside the registered sale deed which suit was registered as Special Civil Suit No.18 of 2018.

(3.) Learned advocate Ms.Roma I. Fidelis representing the appellant - plaintiff has vehemently submitted that there is a serious mischief committed by the defendants to defraud the rights of the daughter, and undisputedly, the land in question, according to the plaintiff, was belonging to the father who died in the year 1963, but then by keeping aside the interest of present plaintiff - appellant, the land has been sold away for a sizable amount. Even the revenue authorities have also not looked into minutely and though pointed out, the learned trial Judge has not considered the case of the appellant and rejected the request. This exercise, as such, according to the learned advocate, reflects non application of mind. It has further been contended that reasons which are assigned by the learned trial Judge are not sufficient enough to sustain conclusion which has been arrived at, and therefore, this error which has been committed in exercising jurisdiction deserves to be corrected.