AO/247/2000 of BHUPENDRABHAI GURUDATT KADARIA Vs CHHAGANBHAI NAROTAMBHAI PATEL on 18 December 2000

1. Whether Reporters of Local Papers may be allowed : YES

to see the judgements?

2. To be referred to the Reporter or not? : NO

3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BHUPENDRABHAI GURUDATT KADARIA

Versus

CHHAGANBHAI NAROTAMBHAI PATEL

-------------------------------------------------------------- Appearance: MR SUNIT S SHAH for Appellants MR DR DHIMAR for Respondent No. 1

-------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA

Date of decision: 18/12/2000

ORAL JUDGEMENT

1. This Appeal came to be filed by original plaintiffs, being aggrieved by the order of the learned Civil Judge (SD), Bardoli, below Exh.5 in Civil Suit No. 11 of 1998, whereby the learned Trial Judge rejected the application of the plaintiffs for the temporary injunction vide his order dated 28th February, 2000.

2. The suit came to be filed on the basis that deceased Dahiben, daughter of deceased Khushalbhai Bhagvanbhai, of village Naldhara, Taluka Bardoli, died on 10th December, 1996 had executed a Will in favour of the present plaintiffs on 15th May, 1989 and the plaintiffs were in possession of the suit property by virtue of the said Will, which is a registered Will. It is the case of the plaintiffs that they cultivate the agricultural land and take produce from the same. The defendant also in answer to the suit contended that deceased Dahiben executed a Will on 11th of October, 1994 in favour of the defendant, which is also a registered Will and last testament of the deceased. It was contended that by virtue of said Will, the defendant was in possession of the suit property and earlier Will executed was not helpful to the plaintiffs. It was contended that by virtue of this Will dated 15th October, 1994, the defendant became the owner of the said Suit Property.

3. Learned Advocate Mr Sunit S. Shah for the appellant and learned Advocate Mr.D.R. Dhimar for the respondent were heard.

4. Learned Trial Judge in his order made it clear that the execution of Will will have to be established by the parties and the same will be subject matter of recording of the evidence. Learned Trial Judge also observed that at this prima facie stage, it was unable for him to conclude that which of the two Will was genuine. Learned Trial Judge further observed that the plaintiffs failed to establish their prima facie case as to the possession and hence the Application Exh.5 for the temporary injunction filed by the plaintiffs came to be rejected.

5. The established law is, the Appeal From Order is an Appeal on principle. The interference is not permitted unless miscarriage of justice is obviously noticed or it is noticed that the matter is not dealt with in judicial manner.

6. The fact remains that both the parties will have to establish the Will as putforth by them. The parties are in dispute regarding the possession of the suit property as well. The plaintiffs were not given any interim order at ad interim stage and ultimately the application came to be rejected by the trial court. However, while admitting this Appeal, by order of this

Court on 10th July, 2000, ad interim relief to the extent that the possession of the appellants of suit property not to be disturbed by the respondent, as granted, is still in operation. Therefore, right and title of the property and the possession as well is in dispute.

7. In these circumstances, it would be just and proper to direct the Trial Judge to expedite the disposal of the suit after hearing both the parties. Since the possession is in dispute an order of status quo regarding the possession on the date of the filing of the suit would be just and proper order with the clarification that both the parties will be at liberty to file and adduce proper evidence as to which party was in possession on the date of filing of the suit. In this view of the matter, the following order is passed :

" The Trial Court is directed to hear and expedite the disposal of the Special Civil Suit No. 11 of 1998 and further directed to dispose of the above said Suit within three months from the date of the receipt of the writ of this Court or producing the certified copy of this order before the Trial Court by any party, whichever is earlier. Office is directed to transmit the writ of this Order to the Trial Court within a week time. In the meanwhile, i.e. till the disposal of the suit, both the parties are directed to maintain status quo as to the possession of the suit property obtainable on the date of filing of the suit. The plaintiffs as well as the defendant both will be at liberty to adduce evidence as to which party was in possession of the suit property on the date of filing of the suit.

The Trial court is further directed to decide the suit on merit without being influenced by the order passed by it below Application Exh.5 and also without being influenced by this order passed by this Court."

8. With the above said order, this Appeal is disposed of with no order as to costs.

9. This will also dispose of Civil Application No.

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