Civil Judge No Bai Majuben Wd/O Bhikhabhai Dungarbhai ­ vs Ranchhodbhai Dungarbhai ­ Defendants

1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein ­original plaintiff (now heirs and legal representatives of original appellant as the original appellant has died during the pendency of the present appeal) to quash and set aside the impugned judgment and order passed by the lower Appellate Court ­learned Extra Assistant Judge, Ahmedabad (Rural) at Narol dated 22.2.1985 by which the learned Appellate Court has allowed the said Regular Civil Appeal No.105 of 1983 preferred by the respondent herein­ original defendant and has quashed and set aside the judgment and decree dated 22.6.1983 passed by the learned trial Court passed in Regular Civil Suit No.126 of 1981.

2.0 That the original appellant­original plaintiff instituted Regular Civil Suit No. 126 of 1981 in the Court of learned Civil Judge (J.D.), Dhandhuka against the respondent herein­original defendant for perpetual injunction restraining the defendant from disturbing his possession. It appears that on appreciation of evidence the learned trial Court decreed the suit and granted permanent injunction as prayed for and restrained the defendant, his agents and servants from interfering and from entering into the possession of the plaintiff suit property bearing survey Nos. 272, 96, 41 and 21 situated at village Dewalia Tal: Dhandhuka, Dist. Ahmedabad. It appears that being aggrieved and dissatisfied with judgment and decree passed by the learned Trial Court in decreeing the suit and granting the permanent injunction in favour of plaintiff and against the defendant, the respondent herein­original defendant preferred Regular Civil Appeal No. 105 of 1983 before the learned Appellate Court ­ learned District Court, Ahmedabad (Rural) and by impugned judgment and order dated 22.2.1985 learned Appellate Court has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court.

2.1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant herein­original plaintiff (now heirs and legal representatives of original appellant) has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.

3.0 After the matter was argued for some time and considering the impugned judgment and order passed by the learned Appellate Court, by which, the learned Appellate Court has quashed and set aside the judgment and decree passed by the learned trial Court, it has been found that the learned Appellate Court has not considered anything on merits with respect to the possession and / or even the finding of fact given by the learned trial Court holding plaintiff to be in possession of suit property, there is a broad consensus between the learned advocates for the respective parties to quash and set aside the impugned judgment and order passed by the learned Appellate Court and to remand the matter to the learned Appellate Court to decide and dispose of the same in accordance with law and on merits and to consider the question with respect to the possession and the finding given by the learned trial Court that the plaintiff was in possession of the suit land. Learned advocates for the respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and order passed by the learned Appellate Court and remanded the matter to the learned Appellate Court. Hence, this Court has not assigned any further reasoned order while partly allowing the present Second Appeal and quashed and set aside the impugned judgment and order passed by the learned Appellate Court and remanded the matter to the learned Appellate Court.

4.0 In view of the above and in terms of above broad consensus between the learned advocates for the respective parties recorded hereinabove, present Second Appeal is partly allowed. The impugned judgment and order passed by the lower Appellate Court ­learned Extra Assistant Judge, Ahmedabad (Rural) at Narol dated 22.2.1985 passed in Regular Civil Appeal No.105 of 1983 is hereby quashed and set aside and the matter is remanded to the leaned Appellate Court and to decide and dispose of the said appeal afresh in accordance with law and on merits inclusive of to decide the question with respect to the possession (as the suit was only for perpetual injunction only) and even finding given by the learned trial Court holding the plaintiff to be in possession of the suit land in question. However, it is made clear that this Court has not expressed anything in favour of either parties with respect to the possession and learned Appellate Court shall consider the same in accordance with law and on the basis of evidence already led. The aforesaid exercise shall be completed by the learned Appellate Court within a period of six months from the date of receipt of the writ of the present order and the learned Appellate Court is hereby directed to decide and dispose of the appeal within stipulated time as as stated above. All concerned are directed to cooperate the learned Appellate Court in early disposal of the appeal within stipulated time as stated above herein and till then without prejudice to the rights of the respective parties, respective parties are directed to maintain status quo as on today. Registry is directed to send the writ of this order along with Record and Proceedings of the case to the learned Appellate Court immediately.

kaushik ( M. R. Shah, J. )