1. This appeal is filed against the judgment and decree passed by the Civil Judge (S.D.), Morbi dated 22.7.1998 in Special Civil Suit No.4 of 1990, whereby the suit of the present appellants-original plaintiffs was dismissed by the learned trial Court.
2. The brief facts leading to filing of the present appeal are that the present appellants- original plaintiffs filed the abovenamed suit for partition of the ancestral property in respect of Survey No.988 and 0-22 gunthas of Survey No.724(4) situated in the sim of Vajepur Madhapar of Morbi and also prayed that pending the suit the agricultural yield to be paid to the present appellants. The learned trial Court dismissed the suit against which the present appeal is filed.
3. Heard learned advocates for the parties.
4. Learned advocate Mr.Buch appearing for the appellants submits that as far as survey no.988 is concerned, matter is settled by the present appellants-original plaintiffs with all respondents- defendants and now present appellants-plaintiffs have waived their right in this property as settlement took place. Respondent no.4 is present and as per the instructions, the settlement pursis is placed on record by respondent no.4-purchaser which is ordered to be taken on record.
5. Learned advocate Mr.Majmudar submits that respondent no.1 is also party to the settlement and he also confirms this settlement.
6. So far as the land admeasuring 0-22 gunthas of Survey No.724/4 is concerned, as per the deposition and case of the plaintiffs, 1/3rd part of the said land i.e. 22 gunthas came in the share of Pitambarbhai Juthabhai and as per the partition that took place between the brothers, the said land went to the share of Sivabhai Pitambarbhai. As per the case of the plaintiffs, the said land is illegally snatched by the defendant no.1 and the possession is not handed over to the defendant no.1. As per the case of the defendant no.1, Santokben widow of deceased Pitambarbhai and other legal heirs i.e. Sivabhai Pitambarbhai sold the said land to defendant no.1 for consideration of Rs.2,500/- on 5.5.1985.
7. Considering the rival contentions and after appreciating the evidence of the plaintiffs and defendants' side, the trial Court has rightly held that defendant no.1 is in possession of the land admeasuring 0-22 gunthas of Survey No.724/4. It is also rightly held by the trial Court that though Santokben is alive, the plaintiffs did not examine her. If Santokben would have been examined, then entire picture would have been clear. She can very well state that whether defendant no.1 is in illegal possession of the suit land or whether the suit land is sold by her and other legal heirs to the defendant no.1. It is also admitted fact that the defendant no.1 is in possession of the suit land since 14 years and till 14 years the plaintiffs did not take any step for obtaining possession of the said land.
8. Considering these facts and the evidence on record, the trial Court has rightly held that the plaintiffs have failed to prove their case and the plaintiffs are not entitled to get any relief as prayed for in the plaint.
9. In view of the above discussion, the appeal is partly allowed. The judgment and order passed by the learned trial Court in respect of Survey No.988 is hereby modified in terms of the settlement placed in this appeal.
( M.D.Shah, J ) srilatha