KAPILBHAI ISHWARBHAI PATEL, LEGAL HEIR OF ISHWARBHAI MANI Vs. DINESHBHAI MANIBHAI PATEL DECD.THRO HEIRS
LAWS(GJH)-2016-4-231
HIGH COURT OF GUJARAT
Decided on April 19,2016

KAPILBHAI ISHWARBHAI PATEL Appellant
VERSUS
DINESHBHAI MANIBHAI PATEL Respondents

JUDGEMENT

- (1.) This is plaintiff's appeal. It is unusual in more than one sense. One reason for saying so is - the appeal which is admitted earlier is against the order of remand and yet it is likely to be allowed.
(2.) Few relevant facts are, thus; one Manilal had various parcels of land in Surat District. Couple of properties are residential houses and almost rest of all the properties are agricultural lands. The odd fact is that Manilal was residing separately from his wife and his three sons. He had instituted a suit from which the present appeal arises. The said suit is Special Civil Suit No.76 of 1982, it is for declaration and injunction, sought against his wife and sons. In substance, the relief prayed for is - declaration that properties mentioned in the plaint are his personal properties and he is in possession of the same. A declaration was also sought that defendants have no right, title and interest in the suit property. It also appears from the record that in respect of suit properties, a criminal complaint was also lodged. On apprehension of filing civil suit, caveat was also filed. Manilal failed to get interim relief. Said Manilal died during the pendency of the suit. He had said to have executed a Will. It is stated to be a registered Will. On the strength of that Will, one of the defendants / son i.e. Ishwarbhai applied for transmitting him as plaintiff from the defendant. He had also applied for amendment in the plaint. It is apparent that said application of Ishwarbhai was allowed and Ishwarbhai had become the plaintiff in the suit and amended suit proceeded. The defendants contested the suit. Said suit came to be partly decreed. The trial court had held that plaintiff has 1/4th share in the suit property. 2.1 Aggrieved by the decree of the trial court, one of the defendants - brother, namely, Dineshbhai filed an appeal before the District Court i.e. Civil Appeal No.20 of 2006. The District Court was pleased to allow the appeal and remand the case to the trial court. In this Appeal from Order, the remand order is under challenge.
(3.) Heard learned advocates for the parties.;


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