MAGANBHAI GARBADBHAI PATEL DIED Vs. SUSHILABEN

JUDGEMENT

(1.) This Second Appeal under section 100 of the CPC is at the instance of the original defendants, questioning the legality and validity of the judgment and order dated 11.01.2012 passed by the learned District Judge, Narmada, at Rajpipla, in the Regular Civil Appeal No.87/2006 arising from the judgment and decree dated 29.02.2000 passed by the Civil Judge ( JD ), Rajpipla, in the Regular Civil Suit No. 31/1986.

(2.) The respondents herein - original plaintiffs preferred the Regular Civil Suit No. 31/1986 in the Court of the Civil Judge (JD), Rajpipla, for partition of the suit properties and accounts. The suit of the plaintiffs was based substantially on the ground that the suit properties are ancestral. The plaintiffs are the daughters of Manilal. The father of Manilal, namely Garbadbhai, was the original owner of the suit properties. Garbadbhai passed away in 1982. During the life time of Garbadbhai, the suit properties remained undivided. The wife of Garbadbhai also passed away. In such circumstances, the plaintiffs claimed that they have a share in the suit properties, being ancestral. The appellants herein - original defendants filed their written statement vide Ex-30 and denied that the suit property is ancestral. The appellants herein also raised a contention that the suit is not maintainable on account of nonjoinder of the necessary parties. It was also contended by the appellants herein before the trial Court that the suit property had been partitioned on 09.06.1959 and the father of the plaintiffs was allotted land bearing survey Nos.135, 220 and 311 including vada No.38. The appellants - original defendants contended that the land bearing survey Nos. 135, 220, 311 and vada No.38 which came to the share of Garbadbhai, i.e. the father of the plaintiffs, came to be disposed of during the life time of Garbadbhai. The suit properties came to the share of the defendants Nos.1, 2 and 3. The defendants also contended that the land bearing survey No.220 was acquired by the defendant No.2 in some tenancy proceedings. The appellants - defendants contended that the suit was liable to be dismissed even on the ground of deficit Court fees.

(3.) Having regard to the nature of the pleadings, the trial Court framed the following issues vide Ex-33: