IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No 552 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE R.BALIA. ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- HARSHADKUMAR CHHOTALAL DUDHIA Versus MAHENDRA PURSOTTAMDAS DUDHIA -------------------------------------------------------------- Appearance: MR MB GANDHI for Petitioners MR RN SHAH for Respondent No. 11 -------------------------------------------------------------- CORAM : MR.JUSTICE R.BALIA. Date of decision: 04/02/98 ORAL JUDGEMENT This appeal is against order dated 21.2.94 on application for temporary 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 Chhotabhai. On the death of Harilal somewhere in 1927. 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 in that regard has been sought and also incidental 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 name of Laxmanbhai who aoalso 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 12.8.90 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 defendant no.4 to 9 restraining them from dealing with the property in any manner. That application came to be rejected by the order dated 21.2.94 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 purposes is that one of the attesting witness of alleged will dated 18.2.26 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 his demise all his papers were in custody of his heirs. According to the plaintiffs, firstly, in possession of elder brother Indravan 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. 4. Moreover Chhotalal himself being one of the attesting witness knew about its existence and benefit to which he became on demise of his father. Yet Chhotalal during his life time made no attempts to secure the rights flowing to him under the alleged will and no action prior to the filing of the suit has been taken by any of the heirs of Chhotalal for declaration of title and seeking possession of the property in question.Prima-facie, it is established from this fact alone that since the will came into operation in 1927, legatee during his life time until 1952 for a period of 25 years did not prosecute for his rights nor his heirs until 1990 made any attempt to secure rights flowing from the said will. If that be so, the conclusion flows automatically that Laxmanbhai who is alleged to be in possession of the property and in whose name revenue records stands held the property adverse to Chhotabhai from beginning. Even during the life time, the suit by Chhotabhai would have become barred by limitation. Question to seek declaration and possession on the basis of Chotabhai's right by his heirs would not prima facie arise. 4. I am therefore in agreement with the finding of the Trial Court that plaintiffs have failed to make out prima facie case in their favour and in that view the application for interim injunction has rightly been rejected. 5. As a result, this appeal fails and is hereby dismissed. The interim relief granted by this court on 1.8.96 is vacated. No order as to costs. ****** jitu