HARSHADKUMAR C. DUDHIYA Vs. MAHENDRA P. DUDHIYA

JUDGEMENT

(1.) This appeal is against order dated 21-2-1994 on application for temporary, injunction Ex. 5 in Civil Suit No. 2660/92 by the City Civil Judge, Ahmedabad in Court No. 21. The plaintiffs-appellants are heirs of Chhotalal Dudhiya, son of Harilal Dudhiya. The defendants are heirs and legal representatives of Laxmanbhai Dudhiya, brother of Chhotalal and another son of Harilal. Respondent No. 11 who has been impleaded here is a trust in whose favour the property in question is sought to be transferred by the defendants, in connection with proceedings under Section 21 of the Urban Land Ceiling Act. The suit has been instituted for declaration and injunction in respect of the property being Survey No. 615 in the City of Ahmedabad. According to the case of the plaintiffs property was originally held by Harilal, father of Laxmanbhai and Chhotabhai, who by executing Will on 18-2-1926 bequeathed the aforesaid property in favour of Chhotalal became exclusive owner of the said property and after death of Chhotabhai in 1952, plaintiffs are the owners of the property bearing Survey No. 615. Laxmanbhai or his heirs have no right title or interest in the said property. A declaration decree for injunction against the defendants, who are the heirs of Laxmanbhai and are alleged to be in possession of the property in question since the death of Harilal and in the revenue record also the property stood mutated in the nane of Laxmanbhai who also died in 1954. The suit has been filed in 1990.

(2.) It is the case of the plaintiffs that they came to know of the said will only on 12-8-1990 while searching papers of their father which were with Pushpaben, plaintiff No. 8 since 1985 after the death of Indravadan, elder brother of the plaintiffs. An application was also moved for temporary injunction against defendants No. 4 to 9 restraining them from dealing with the property in any manner. That application came to be rejected by the order dated 21-2-1994 which is subject-matter of this appeal.

(3.) One fact which is to be noted and is not in dispute and relevant for the present purpose is that one of the attesting witness of alleged will dated 18-2-1926 none other than Dr. Chhotalal Harilal himself, the legatee in whose favour suit property has been bequeathed and through whom above plaintiffs claim their right. It is also clear that since the demise all his papers were in custody of his heirs. According to the plaintiffs, firstly, in possession of elder brother Indravadan alias Vadibhai and thereafter with the elder sister Pushpaben. The theory that plaintiffs came to know of the Will for the first time in 1990, prima facie does not aspire confidence in it.