( 1 ) APPELLANT before this court is the original plaintiff who instituted RCS No. 77/72 in the Court of civil Judge (JD) at talaja against the respondent-defendants claiming his share in parcels of land bearing S. No. 19 admeasuring 2 acres 7 gunthas and S. No. 20 admeasuring 10 acres 27 gunthas at village Madhavpura. His case was that one Gaga was the common ancestor who had four sons, namely, (i) 1ghugha, (ii) Shiba, (iii) Bhikha and (iv) jeeva (present appellant-plaintiff ). He further pleaded that the said parcels of land were cultivated by Gaga the father of aforesaid four parties as a tenant of barkhalidar. His further case was that on coming into force of Saurashtra Barkhali abolition Act, 1951, the said parcels of land were entered into the name of the eldest brother Ghugha and the occupancy certificate of the lands in question was granted in the name of Ghugha with the consent of all three other brothers, i. e. Shiba, Bhikha and Jeeva. It is his case that the lands were thereafter being cultivated jointly and the present defendant- respondents being the sons of deceased ghugha were cultivating the said lands in jointness with the plaintiff-Jeeva. He averred that the said parcels of land were partitioned 1/2 to 1/2 between the branch of ghugha on the one hand and Shiba and bhikha on the other hand while the plaintiff-Jeeva continued to remain joint with the respondent-defendants. It is his case ,that when he demanded his share in the suit fields same was denied and hence he has filed the suit for partition claiming his 1/2 share out of balance lands which have remained with the respondent-defendants.

( 2 ) THE respondent-defendants appeared and disputed the claim of the plaintiff. Their case was that the plaintiff was never in possession of the lands in question nor was he in joint possession with them. The plaintiff was serving in Western Railway since last 30 years and was in every respect separate from the family. They further contended that in fact occupancy certificate was obtained in the name of Koli Ravji gaga-defendant No. 1 and it was never obtained in the name of Gaga as is alleged by the plaintiff. It was their further case that since two other brothers, namely, Shiba and Bhikha were helping them in agricultural operation, some land was given to them out of said two survey nambers but such property was not partible at all.

( 3 ) ON the aforesaid pleadings of the parties, the trial court framed issues and found that the appellant-plaintiff has succeeded in proving that the aforesaid parcels of lands were joint between the plaintiff and defendants and that occupancy certificate was issued in favour of respondent-defendant No. l and not in favour of deceased Ghugha. The trial court also found that his two other brothers, namely, Shiba and Bhikha got their share from S. Nos 19 and 20 while the plaintiff alone was denied his share and therefore the trial court decreed the suit for partition declaring that the plaintiff was entitled to share out of the balance of lands left with the respondent-defendants.

( 4 ) BEING aggrieved by said judgment and decree of the trial court, the original defendants preferred Reg. Civil Appeal No. 170/75 in the court of Asstt. Judge at bhavnagar who by judgment and decree dated 1st March 1977 allowed the appeal and quashed and set aside the judgment and decree of the trial court holding that the plaintiff has failed to prove that the lands were joint family properties liable to partition, and further holding that the plaintiff has failed to prove that the occupancy certificate was obtained in the name of two defendants because they were the sons of eldest brother-deceased Ghugha.

( 5 ) AFORESAID judgment and decree passed by the lower appellate court is under challenge before this court.

( 6 ) WHILE admitting the second appeal the learned single judge of this court framed following substantial questions of law: (I) Whether finding of the learned Asstt. Judge, Bhavnag