The court upheld the trial court's dismissal of an interim application, emphasizing the need for a prima facie case and balance of convenience in succession disputes under the Hindu Succession Act.

ORDER :

1. The present Appeal From Order has been filed by the present appellants-original plaintiffs under Order XLIII Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as “the C.P.C.”) by challenging the impugned order dated 01.11.2018 passed below Exh.5 application in Special Civil Suit No. 389 of 2016 by the learned Principal Senior Civil Judge, Kathor, Surat, whereby the same rejected.

2. Brief facts of the case as per the case of the appellants in this appeal are as such that the present dispute arises from three different pieces of lands and its inheritance i.e. block no. 25 in Survey no 26, block no 31 in Survey no 33 and block no. 157 in survey no. 178 located in Mauje Kathor, Tal: Kamrej, District: Surat. The lands in question are an agricultural land of old tenure land and was originally owned by Late Shri Durlabhbhai Ratanji Patel. Shri Patel is the great maternal grandfather of the present appellants and they are thus first degree descendants (successors) of Late Shri Patel. The present defendants are children of Late Shri Bhikhubhai Durlabhbhai Patel who was the son of Shri Durlabhbhai Patel and thus are descendants (successors) of the first degree. Late Shri Durlabhbhai passed away on 02.06.1992 intestate and thus the aforementioned property was to be divided as per the provisions of the Hindu Succession Act and the landmark decisions of the Hon’ble Apex Court governing this law.

It is further the case of the appellants in this appeal that Late Shri Durlabhbhai had three children. Smt. Gangaben, i.e. the grandmother mother of the appellants, Shri Bhikhubhai i.e. the father of the defendants and Smt. Naniben, who waived away rights over the said property. Thus, as per law, the aforementioned property was to be divided equally between the two remaining successors.

It is further the case of the appellants in this appeal that dispute arose when Late Shri Durlabhbhai passed away in the year 1992. The father of the present defendants i.e. Bhikhubhai deliberately did not enter the name of the grandmother of the appellants Smt. Gangaben as the successor. It is alleged that the Shri Bhikhubhai forged a pedigree and made an application to the revenue authority and entered his name to the revenue entries vide entry no. 3425. It is further the case of the appellants in this appeal that Smt. Gangaben and the present appellants had no knowledge regarding the fraud.

It is further the case of the appellants in this appeal that Shri Bhikhubhai passed away on 19/02/2006 and the present defendants got their names entered into the revenue records without informing the present appellants. It is further the case of the appellants in this appeal that the appellants herein came to the knowledge of this at a very later stage and immediately challenged the revenue entry no. 3425 before the Ld. Collector of Kamrej but the same came to be rejected on the grounds that the same was a civil dispute and thus deserved to be heard by a competent Civil Court and not the Collectors Office by an order dated 10/03/2016. It is clarified that the revision for the same is pending before the concerned authority.

It is further the case of the appellants in this appeal that the plaintiffs had earlier filed a Regular Civil Suit No. 24 of 2016, which came to be rejected under Order 7 Rule 11 of the C.P.C. and the same has not been challenged.

Being aggrieved by the same and in order to fight for their rights, the present appellants filed the Special Civil Suit No. 389 of 2016 for declaration of succession rights, division and stay order before the Ld. Principle Senior Civil Judge of Kathor along with an interlocutory application for interim order for stay under Order 39 Rule 1 of the C.P.C. which came to be dismissed on 1.11.2018. Being aggrieved by the same, this Appeal From Order has been preferred by the appellants for the rescue of their legal and succession rights.

3. Heard Mr. C.B. Upadhyaya, the learned counsel for the appellants and Mr. Prem