NAGINBHAI NIDHALBHAI Vs. CHANDUBHAI NAGINBHAI

JUDGEMENT

(1.) PETITION is directed against the order dated 3rd September, 2004 passed by the learned District Judge, Navsari below Exh. 39 in Regular Civil Appeal No. 8 of 1998.

(2.) SHORTLY stated the facts are as follow: petitioners are original defendants Nos. 1 and 2. Respondent had filed Regular Civil Suit No. 43 of 1989 before the learned Civil Judge (J. D.), Chikhali seeking partition of certain properties belonging to the petitioners herein on the ground that he is son of the petitioner No. 1 and half the brother of the petitioner No. 2. It is the case of the respondent that the petitioner No. 1 was married to one Khalpiben and through the wedlock he was born as son of the petitioner No. 1. The petitioners as defendants in the suit denied the said averments. Petitioner No. 1 in particular contended that though he was married to Khalpiben but during subsistence of his marriage with Khalpiben, she did not give birth to any child.

(3.) LEARNED Trial Judge raised the issues such as, `whether the plaintiff proves that the suit properties are ancestral properties?, and `whether the plaintiff proves that he has one third share in the suit properties of the defendant No. 1? However, learned Civil Judge did not raise specific issue with respect to the relationship of the respondent-plaintiff with the defendant No. 1.