IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO.13692 OF 2021 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI ================================================================

Approved for Reporting Yes No ================================================================

ANJANABEN JAYANTBHAI GAJERA & ANR.

Versus RAMJIBHAI MEPABHAI GAJERA & ORS.

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Appearance:

MR VARUN BHARDA for MR SP MAJMUDAR(3456) for the Petitioner(s) No.

1,2 NIRALI Y OZA(8643) for the Petitioner(s) No. 1,2 MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 2,3,5 NOTICE SERVED for the Respondent(s) No. 1,4 ================================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI Date : 17/02/2026

ORAL JUDGMENT

1. By way of this petition, under Article 227 of the Constitution of India, 1950, the petitioners have prayed to quash and set aside the order dated 5.7.2021 passed by the learned Additional Civil Judge & Judicial Magistrate First Class, Upleta in Regular Civil Suit No.6 of 2017 below Exhs.25 and 33.

2. Heard learned advocate Mr. Varun Bharda for learned advocate Mr. S. P. Majmudar for the petitioners and learned advocate Mr. Digant B. Kakkad for respondent Nos.2, 3 and 5. Though served, none appeared for respondent Nos.1 and

4. Perused the record.

3. The facts in brief of the case are as under:

4. The petitioners are the plaintiffs who have filed a suit for partition of the properties bearing survey nos.182/2, 146/6 and 113/2 of village Tansava, Taluka Upleta, District Rajkot coupled with declaration, permanent injunction and setting aside the sale deed dated 9.6.1999 executed in favour of defendant No.5. The suit properties were acquired by deceased Mepabhai Shamjibhai from his father Shamjibhai Kanjibhai. Before the issues came to be framed, two applications under Order 6 - Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code’) came to be filed by plaintiffs vide Exhibits 25 and 33. Below Exhibit 25 application, plaintiff sought to add a house of deceased Mepabhai Shamjibhai Gajera in village Tansava admeasuring about 400 square yards. Below application Exhibit 33, the plaintiffs sought to add survey Nos.78/2/7, 81/1/1 again 81/1/1 and 115 of village Dhak, Taluka Upleta, District Rajkot and further prayed for declaration that a sale deed dated 27.1.2011 for the land bearing survey No.115 in favour of defendant No.3 is not binding to plaintiffs. Both the applications were heard together and by a common order dated 5.7.2021, the learned Additional Civil Judge, Upleta rejected both the applications. Being aggrieved and dissatisfied with the impugned order of rejection, plaintiffs-petitioners are before this Court.

5. Learned advocate for the petitioners contended that the plaintiffs have filed the suit for partition of ancestral properties and for other ancillary reliefs. Initially, the plaintiffs sought partition of 3 lands bearing survey Nos.182/2, 146/6, 113/2. Before hearing of Exhibit 5 application, plaintiffs found that by mistake the house situated at village Tansava admeasuring about 400 sq. yards was not mentioned in the suit property and also found that the survey numbers 78/2/7, 81/1/1, 81/1/1 and 115 of village Dhank were not shown as suit properties. It is submitted that all the properties which are proposed to be added are ancestral properties of Mepabhai Shamjibhai and plaintiffs have 16.66% share so far as land bearing survey No.115 of village Dhank is concerned, defendant No.3 executed a registered sale deed in favor of Kantilal Bhikhabhai Vanpariya on 27.1.2011. A declaration that the sale deed is not binding was also sought for to be added in the body of the plaint as well as in the prayer clause. The ancillary reliefs were also sought for with regard to the revenue survey No.115. The learned trial Court has committed a grave error of law by rejecting both applications on the misi