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2010 DIGILAW 119 (GUJ)

ASHOK POPATLAL DATANI v. GEETABEN W/O PRAKASHCHANDRA TRIBHOVANDAS DATANI

2010-03-04

RAVI R.TRIPATHI

body2010
ORDER RAVI R.TRIPATHI, J. Some self-claimed protectors of interest of the caste came forward and filed a suit being Special Civil Suit No. 48 of 2008. The number of these self-claimed protectors went on increasing. Initially, when the suit was filed, there were only two but later on number increased to ten. Not only that some of these persons did not find place to join as plaintiffs and therefore they joined as defendants. 2. It is a universal rule that, 'whenever there is property there is dispute about the same'. The appellants-original plaintiffs are before this Court challenging an order passed by learned Senior Civil Judge, Khambhaliya below exh. 5 in Special Civil Suit No. 48 of 2008 dated 4th May 2009. 3. Heard learned Advocate Ms. Megha Jani for the appellants-plaintiffs. The learned Advocate for the appellants very strenuously taking all pains, tried to convince this Court that the learned Judge has committed an error in rejecting exh. 5 application. 3.1 Despite her best efforts she could not convince the Court to take the view that the learned Judge has committed an error in rejecting exh. 5 application. 3.2 The learned Advocate for the appellants read Para 18 of the order, which elaborately records the reasons for which no relief is required to be granted as prayed in exh. 5 application. The learned Judge has taken all required pains to record every single aspect, which warrants/deserves consideration, while deciding an application praying for injunction. 3.3. The learned Judge has also taken care of recording points which are raised by the defendants and which have bearing on the discretion of not granting the relief as prayed for. 4. The learned Advocate for the appellants submitted that the learned Judge has committed an error when he observed that, 'the sale deed of the property, in favour of defendant nos. 2 to 5, executed in the year 2006, was drafted by one Shri JR Kanani, who happens to be a member of Lohana Community, he would not have drafted the same'. The learned Advocate for the appellants vehemently submitted that the learned Judge has exceeded his jurisdiction in observing and putting such observation on record. 4.1. 2 to 5, executed in the year 2006, was drafted by one Shri JR Kanani, who happens to be a member of Lohana Community, he would not have drafted the same'. The learned Advocate for the appellants vehemently submitted that the learned Judge has exceeded his jurisdiction in observing and putting such observation on record. 4.1. It is very natural that the learned Advocate for the appellants representing the cause of plaintiffs bound to get offended by such observation but then observation is made in a most natural way inasmuch as, 'it is the case of the plaintiffs that the property was given to the whole of the community and if that is so, Mr. Kanani, the learned Advocate, who belongs to the same community, being in know of the same would not have drafted a sale deed by which community property is sold to an individual'. He would have brought the fact to the notice of the members/leaders of the community, then, suit would have been filed in the year 2006 and not in 2008. 4.2. This Court is of the considered opinion that the learned Judge has not committed any error in making this observation. 5. The learned Advocate for the appellants also took objection to the observation made by the learned Judge that if the relief as prayed for in exh. 5 is granted, it will amount to decreeing the suit at this stage. This observation is also found to be in fitness of things and there is nothing wrong with the said observation. The learned Judge has recorded in its order that, 'defendant nos. 1/1 to 1/4 are the heirs of one Shri Tribhuvandas Gokaldas Datani. This Tribhuvandas Gokaldas Datani had obtained a Succession Certificate by filing appropriate application before the concerned Court being C.M.A. No. 144 of 1980 under Sec. 372 of the Indian Succession Act after filing necessary affidavit and thereafter, this property was entered in the name of said Shri Tribhuvandas Gokaldas Datani. It is not the case of the plaintiffs that said Tribhuvandas Gokaldas Datani was not the heir/legal representative of Hansuben'. The learned Judge has also recorded that, 'before issuing the Succession Certificate, the Court issues the Public Notice and only after issuance of such Public Notice the Succession Certificate is issued. It is not the case of the plaintiffs that said Tribhuvandas Gokaldas Datani was not the heir/legal representative of Hansuben'. The learned Judge has also recorded that, 'before issuing the Succession Certificate, the Court issues the Public Notice and only after issuance of such Public Notice the Succession Certificate is issued. The learned Judge has rightly recorded that there is no challenge to the said Succession Certificate which was granted in C.M.A. No. 144 of 1980'. 5.1. The learned Judge has also placed on record that defendant nos. 1 to 5 have purchased the property in question two years before the date of filing of the suit by a Registered Sale Deed. 5.2. What is following is more important. The learned Judge has placed on record that, 'on perusal of the record it is found that in last 10 years, three Public Notices published pertaining to this very property and still there is no objection taken by any person'. This is required to be appreciated in light of the fact that in the year 2008 all of a sudden self-claimed protectors of the interest of the community crop up and file a suit and then insist that exh. 5 application be considered and injunction be granted against defendants restraining them from dealing with the property in any manner. (Emphasis supplied) 6. This Court is of the opinion that the learned Judge has taken all pains to deal with all relevant aspects of the matter and has then passed the order, which does not require any interference at the hands of this Court. Hence, this Appeal from Order fails. 6.1. This Court is of the opinion that the Appeal from Order is required to be dismissed with costs, which should be paid by every plaintiff, who are self-claimed protectors of the interest of the community. The cost is quantified to be Rs.2,500/- (Rupees Two Thousand Five Hundred only) for each plaintiff, deposit of which shall be a condition precedent for taking up any further proceedings in the matter. This amount, as and when deposited, the same be paid to the same community, whose interest is utmost in the minds of the plaintiffs. (SBS) Appeal dismissed.