( 1 ) THIS appeal has been preferred against the judgment and decree of the learned Extra Assistant Judge Baroda dismissing civil appeal No. 49 of 1965 and confirming the judgment and decree passed by the learned 6th Joint Civil Judge Junior Division Baroda in regular civil suit No. 1379 of 1962.

( 2 ) THE facts giving rise to this appeal briefly stated are as under:-THE suit property bearing survey number 445/3 admeasuring 7238 1/2 sq. ft. situated in Baroda Sayaji Gunj ward belonged to one Pathan Sidukhan Pirkhan who is the father of the plaintiff and defendant No. 3. In part of this property admeasuring about 1568 sq. ft there were two houses with Orda Parshal kitchen etc. and were described as city survey numbers 45/12 and 45/13. Sidukhan died on 25-11-1950 leaving behind him his widow Bai Nurbibi and one minor daughter named Dhabu alias Memudabibi and one minor son named Kalu alias Imam khan. Under the Muhammadan Law the share of the plaintiff was 4 2/3 annas in a rupee and the share of the defendant was 9 1/3 annas in a rupee while Nurbibi had 2 annas share in a rupee. All of them thus held the property as tenants in common as the heirs of the said Sidukhan. It