BARIYA UKEDBHAI GEMABHAI Vs. BARIYA RAMESHBHAI SOMABHAI

JUDGEMENT

(1.) The appellant - original defendant, being aggrieved and dissatisfied with the judgment and decree passed by learned First Appellate Court in Regular Civil Appeal No.30 of 2021 vide order dtd. 4/10/2021 whereby the learned First Appellate Court has allowed the appeal of the respondent - original plaintiff and reversed the finding of the learned trial Court passed in Regular Civil Suit No.72 of 2013 vide order dtd. 22/7/2019. The present Second Appeal is filed under sec. 100 of the Code of Civil Procedure 1908.

(2.) The dispute arose in the present appeal is that one Laxmanbhai Motibhai Baria was having share in the agricultural land bearing revenue survey Nos.37/1 and 149 situated at village Kantholi, Taluka Sankheda, District Chhotaudepur along with other family members. Said Laxmanbhai Motibhai Baria was unmarried and died on 29/9/2006. He bequathed his 1/4th share in favour of the present respondent - original plaintiff by way of executing Will. On the basis of the said Will, the respondent has applied for letter of administration before the competent court being Misc. Application No.17 of 2008 and after considering the record of the said application and after hearing the parties, learned competent court has issued the letter of administration in favour of the present respondent original plaitiff vide order dtd. 28/5/2009. By virtue of that, order of letter of administration (probate) was issued by the competent court in favour of the original plaintiff - respondent herein. Appropriate revenue entry was mutated in the revenue record. On the basis of that, original plaintiff - respondent herein has become the owner of the property of said Laxmanbhai Motibhai Baria and he is in possession and he is cultivating the agricultural land.

(3.) As per the cause of action shown in the civil suit, he was objected by the defendant - appellant herein on the ground that Laxmanbhai Motibhai Baria was not owner of agricultural land and therefore, by virtue of letter of administration, he cannot be co-sharer of the land and therefore, they are objecting and for that, Regular Civil Suit was filed with the prayer that he cannot be dispossessed by the defendant from the land bearing Survey No.149 siutated at village Kantholi (Nathpur gamdi), Taluka Sankheda admeasuring 0 Hector, 86 Are and 72 square meters as he became the owner by virtue of letter of administration issued in favour of the plaintiff by the competent court in Probate Application No.17 of 2008 and also prayed for restraining the defendant from entering into the subject parcel of land and to restrain the defendant from taking action and declaration that he is owenr of the said subject parcel of land and ancilliary prayer is also made in the suit.