PATEL CHATURBHAI GHELABHAI Vs. PATEL MANUBHAI GHELABHAI-DECD

JUDGEMENT

(1.) This second appeal under section 100 of the CPC is at the instance of the original plaintiff and is directed against the judgment and order dated 7th May, 2016 passed by the 2nd Addl. District Judge, Kheda at Nadiad in the Regular Civil Appeal No.10 of 2012 arising from the judgment and decree dated 31st January, 2012 passed by the Principal Civil Judge, Mahuda in the Regular Civil Suit No.46 of 2010 which was earlier numbered as the Regular Civil Suit No.208 of 2006.

(2.) The appellant herein-original plaintiff filed a suit for injunction simpliciter with respect to the suit property. It is the case of the appellant herein that by virtue of partition of the suit properties, he is in possession of the suit land. According to him, a partition deed was executed between the parties dated 28th May, 1999. It is also his case that an entry bearing No.660 came to be mutated in the record of rights with regard to the partition of the suit properties. He had to prefer a suit for injunction as the other side tried to interfere and disturb his settled possession. The respondent herein-original defendant appeared in the suit by filing his written statement. He denied the factum of partition having taken place in the year 1999. The defendant relied on a will dated 20th August, 1996 executed by one Dahiben W/o. Late Ghelabhai Dahyabhai. The parties are all heirs of late Ghelabhai Dahyabhai Patel. The case of the defendant is that by virtue of the will executed by Dahiben, the properties bearing Block Nos. 417, 119 and 486 came to be bequeathed in his favour, whereas the other properties including the houses etc. came to be divided amongst the other heirs. The defendant put forward his case saying that he was the true and lawful owner of the suit property and the plaintiff has nothing to do with the same.

(3.) The Trial Court, vide Exh.35, framed the following issues;