1. The present Second Appeal under Section 100 of Code of Civil Procedure has been preferred by the appellant-original plaintiff and respondents nos. 2 to 5 in appeal before the learned appellate Court to quash and set aside the impugned judgment and order passed by the learned appellate Court-learned Extra Assistant Judge, Surendranagar dated 07/12/1987 in Regular Civil Appeal No. 61/983 by which the learned appellate Court has allowed the said appeal preferred by the original defendants and has quashed and set aside the judgment and decree passed by the learned trial Court decreeing the suit for possession of the suit lands.
2. It is required to be noted that while admitting the present second Appeal, the learned Single Judge has framed the following substantial question of law;
"Whether the appeal before the lower appellate Court stood abated on the death of Godavariben and respondent no. 1-Himatlal Mohanlal Pandya?"
3. Having heard Shri Suresh M. Shah, learned advocate appearing on behalf of the appellants and Shri Dhirendra Mehta, learned advocate appearing for Shri P.V. Hathi, learned advocate appearing on behalf of the respondents and considering the judgment and order passed by the learned appellate court and when it has been found that Godavariben was one of the heir of the original defendants-heirs of Chimanlal Girdharlal Pandya and on her death and during pendency of the appeal the estate was represented by other heirs of original defendants-heirs of Chimanlal Girdharlal Pandya and considering the fact that respondent no. 1 in appeal Shri Himatlal Mohanlal Pandya died during pendency of the appeal the estate was represented by his brother Kantilal Mohanlal Pandya, it is not appreciable that how on the death of Godavariben, original appellant no. 6 and respondent no. 1 -Himatlal Mohanlal Pandya, the appeal stood abated. Even Shri S.M. Shah, learned advocate appearing on behalf of the appellants is not in a position to satisfy the Court how on the death of Godavariben (original appellant no. 6) and respondent no. 1-Himatlal Mohanlal Pandya, appeal before the lower appellate Court stood abated. No other submissions have been made and even no substantial question of law has been framed for admitting the Second Appeal.
4. In view of the above and for the reasons stated hereinabove, the present Second Appeal fails and deserves to be dismissed and is accordingly dismissed. No cost.
(M.R.
SHAH, J.) siji Top