AMRUTLAL BECHARJI Vs. RAMSINGJI ARAJANJI

JUDGEMENT

(1.) THIS Second Appeal under section 100 of the Code of Civil Procedure, 1908 is at the instance of the plaintiffs, who had preferred Regular Civil Suit No. 3 of 1980 in the Court of the learned Civil Judge (Junior Division) Kalol (N.G.) praying for partition of the suit property, which was in possession of the defendants/co-mortgagors, who redeemed the mortgage of the property, and for passing necessary order for one half share in the property with possession.

(2.) THE case of the plaintiffs in the suit is that the suit property was ancestral property and was mortgaged with one Shri Shah Kacharadas Sakalchand on 27.09.1902 by taking Rs.981.00 and thereafter, by accepting further amount of Rs.362.00, one more deed of mortgage was executed on 15.6.1934, that the plaintiffs have 1/2 share in the suit land and the defendants without informing the plaintiffs redeemed the mortgaged property, that when on 1.7.1978 the plaintiffs requested the defendants to also get their names entered into the revenue records, the defendants did not give any heed to the request of the plaintiff and, therefore, the plaintiffs had to make an application to the Talati of the village on 7.7.1978 and on such application, when the Talati issued notice to the defendants, the defendants resisted the application of the plaintiffs denying that the suit property was mortgaged, that the dispute as regards entry was taken before the Deputy Collector and the Deputy Collector held that the dispute between the parties was of civil nature and the parties should get the dispute resolved through Civil Court. The plaintiffs have therefore filed suit to get their 1/2 share in the suit property.

(3.) ON the basis of the pleadings, learned trial Judge framed issues at Exh. 27 and the main issues were to the effect that whether the suit property was ancestral property and whether the suit property was mortgaged with Shah Kacharadas Sakalchand being the guardian of Mafatlal Tarbhovandas for an amount of Rs.981.00 and as to whether there was further execution of mortgage deed dated 15.6.1934 with the said person by taking more amount of Rs.362.00.