(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Applicants-
original plaintiffs seek stay of the execution and implementation of the impugned judgment and order dated 17.9.2011 passed by 5th Additional Senior Civil Judge, Rajkot in Special Civil Suit No.122 of 2005. The applicants had filed the said suit challenging a sale executed by their father in favour of respondent No.7 (hereinafter referred to as 'purchaser').
2. Case of the applicants before the Civil Court was that agricultural land under consideration was the property of joint Hindu family. Their father could not have sold the property without the other members of HUF agreeing to such sale. Sale admittedly was executed by the father alone.
3. Case of the original respondent No.1- father of the present applicants, was that he acquired such property by virtue of personal cultivation under the tenancy laws. The property was thus a self acquired property and not the property of HUF.
4. Learned Trial Judge in the impugned judgment came to the conclusion that there was nothing on record to suggest that the property was HUF property. On this basis, the suit came to be dismissed.
5. We have heard the learned counsel for the parties and we have also sifted through the material on record for the limited purpose of deciding this civil application. Since the appeal is already admitted and is pending, we would not like to make elaborate observations on the rival contentions and the evidence on record.
6. Suffice it to state that the father of the applicants had produced revenue entries, entering his name in the property documents which would prima facie suggest, the land was granted to him by virtue of personal cultivation under tenancy laws. It is an undisputed position that an advertisement was issued of the intended sale of the property. The applicants had not raised any objection. Remaining family members have signed the sale deed as witnesses.
7. Prima facie, considering the above facts and circumstances, we are of the opinion that the interim injunction in favour of the applicants-appellants cannot be granted. Order of status-quo is, therefore, vacated.
8. It is, however, provided that any further transaction that respondent No.7 may enter into with respect to the suit land, shall be subject to the outcome of the appeal. Respondent No.7 shall mention pendency of this appeal and also of this order in any further transaction, if he so enters. If he deals with the property in any manner, such details shall be placed before this Court in the above appeal. The said respondent also shall not be entitled to put forth any case of equity on the basis of any development of the land or transaction that he may enter into, pending this appeal. Subject to above safeguard, this civil application is disposed of.
9. At this stage, learned advocate for the applicants prayed for stay of this order for a reasonable period, to permit the applicants to prefer further appeal. At his request, this order shall remain stayed till 30th April 2012.
(AKIL KURESHI, J.) (C.L.
SONI, J.) omkar Top