V.M. Pancholi JUDGMENT
V.M. Pancholi, J.
1. This appeal is filed under Clause 15 of the Letters Patent by the appellants-original respondents No. 3.1, 3.2 and 3.3 against an oral order dated 28.6.2017 passed by the learned Single Judge in Special Civil Application No. 299 of 2017, by which the learned Single Judge has allowed the petition filed by the present respondent No. 3, 4.1 to 4.7 and respondent No. 5.1 to 5.6-original petitioners.
2. The factual matrix of the present case are as under:
2.1 The original petitioner filed the captioned petition, in which it has been stated that grandfather of the petitioners namely Koli Nathubhai Kalabhai Rathod passed away on 16.2.1946. He had four sons namely Jivabhai Nathubhai, Rambhai Nathubhai, Meghabhai Nathubhai and Bavbhai Nathubhai. Prior to death of Nathubhai, his eldest son namely Jivabhai died on 14.12.1939 leaving behind him his heirs. Out of the remaining three sons of deceased Nathubhai, two sons had no issue.
2.2 It is stated that legal heirs of deceased Jivabhai and Bai Mongi, the widow of Kalabhai Jivabhai filed Regular Civil Suit No. 65 of 1967 in the court of Principal Civil Judge, Rajula against Koli Bhavbhai Rathod for declaration, permanent injunction, partition, mesne profit and separate possession of other 1/2 share from the various parcels of agricultural land, the details of which are given in the memo of the petition. It is further stated that in the said proceedings, three different houses were also subject matter of the said suit.
2.3 It is stated that the concerned civil court passed a preliminary decree of partition on 31.7.1968 and the defendant of the said suit challenged that said preliminary decree by preferring Regular Civil Appeal No. 59 of 1968 before the District Court. The said appeal came to be dismissed by the appellate court by an order dated 30.6.1969. Against the said order, Second Appeal No. 703 of 1969 was preferred before this Court and this Court dismissed the second appeal vide order dated 4.12.1973. The petitioners, thereafter, requested to execute preliminary decree and therefore the Civil Judge (J.D.), Rajula appointed one advocate as Court Commissioner to effect the partition. The said Commissioner thereafter retired as Court Commissioner and therefore the concerned Court appointed Shri P.D. Ghanchi as Court Commissioner to effect the actual partition of the property in question. Thereafter, the said Court Commissioner has also declined to proceed further as Court Commissioner. Ultimately, the concerned Court passed a final decree dated 30.12.1978.
2.4 The petitioners have further stated in the petition that after the judgment and decree dated 30.12.1978 has attained finality, Koli Bhagvanbhai Bavbhai the son of the original defendant filed Regular Civil Suit No. 15 of 1980 in the Court of learned Civil Judge (J.D.), Rajula against Koli Kanji Ramshi, Koli Nanji Ramshi, Koli Bai Rakhmani Ramshi and others for declaration and permanent injunction. It was alleged in the said suit that Koli Nathu Kala had executed a Will of his immovable properties on 20.6.1932 in favour of Koli Bav Nathu and Megha Nathu and therefore decree dated 31.7.1968 obtained by the defendants was by suppressing the factum of Will executed by Nathu Kala on 30.6.1932. It is further stated that initially ex-parte stay against execution of the decree was granted and the stay was confirmed thereafter. It is stated that ultimately the concerned civil Court dismissed the suit on 30.11.1983, against which Regular Civil Appeal No. 65 of 1985 came to be filed before the District Court. During the pendency of the said appeal, original appellant Koli Bhagvanbhai Bavbhai Rathod passed away on 13.5.2001 and therefore the appeal was dismissed by an order dated 18.7.2003 having been abated.
2.5 The petitioners have thereafter stated that they applied before ........