1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants- original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Senior Division) Gandevi dated 10/12/2001 in Special Civil Suit No. 34/2000 (old Civil Suit No. 44/1995) by which the learned trial Court has dismissed the said suit as well as the impugned judgment and order passed by the learned appellate Court dated 28/09/2006 in Regular Civil Appeal No. 10/2002 by which the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. Today, when the present Second Appeal is taken up for final hearing, the learned advocates appearing on behalf of the respective parties have jointly submitted that there was one another civil suit filed by the appellants-original plaintiffs, being Regular Civil Suit No. 41/1995 (new Civil Suit No. 32/2000) and it was being heard along with the Special Civil Suit No. 34/2000 (old Civil Suit No. 44/1995), which came to be partly allowed in which the preliminary decree with respect to partition has been passed against which one Regular Civil Appeal No. 55/2005 is pending before the learned Assistant District Judge, Navsari. It is submitted that looking to the controversy in both the suits it is appropriate that both the Appeals i.e. the appeal arising out of Special Civil Suit No. 34/2000 and Special Civil Suit No. 34/2000 are heard together so as to consider the entire controversy between the parties in its true perspective. The learned advocates appearing on behalf of the respective parties, more particularly, Shri Daxesh Mehta, learned advocate appearing on behalf of the contesting respondents have stated the at the bar that they have no objection if the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 10/2002 is quashed and set aside and the matter is remanded to the learned appellate Court and the appeal is heard, decided and disposed of by the Court before whom Regular Civil Appeal No. 55/2005 is pending. The learned advocates appearing on behalf of the respective parties have requested to make suitable observation that this Court has not expressed anything on merits in the present Second Appeal and the learned appellate Court to decide and dispose of the appeal on remand in accordance with law and on its own merits, without, in any way, being influenced by the present order.
3. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties recorded hereinabove and without further entering into the merits of the case and expressing anything in favour of either parties, the impugned judgment and order passed by the learned Presiding Officer, 2nd Fast Track Court, Navsari dated 28/09/2006 in Regular Civil Appeal No. 10/2002 is hereby quashed and set aside and the matter is remanded to the learned appellate Court, which shall be heard alongwith Regular Civil Appeal No. 55/2005, which is reported to be pending before the learned Assistant District Judge, Navsari and both the appeals to be heard by the same Court so that the entire controversy between the parties can be considered in its true perspective.
4. With this, the present Second Appeal is allowed to the aforesaid extent.
5. Registry is directed to return the Record and Proceedings to the learned appellate Court immediately.
(M.R. SHAH, J.) siji