( 1 ) INSTANT Appeal u/s 96 of the Code of Civil procedure is directed against the judgement and decree dated September 30, 1995 rendered in Special Civil Suit no. 170 of 1985 by the learned Civil Judge (SD), vadodara, by which the Suit filed by the appellant against the respondents for partition, claiming 1/3rd share in the ancestral undivided properties, mentioned in para 2 A to U of the Plaint, came to be dismissed.

( 2 ) FOR the sake of convenience, the parties herein are referred to as they are arrayed in the trial Court.

( 3 ) THE facts giving rise to this First Appeal are as follows:3. 1 the plaintiff and the defendants are the real brothers and sisters. Their father - Isharbhai ranchhodbhai - died on 26. 2. 1982. The deceased Isharbhai ranchodbhai was having ancestral properties of agricultural lands, Gabhan land and houses mentioned in para 2 A to U of the Plaint (the suit properties for short ). It was alleged in the Plaint that the suit properties were the ancestral properties. The land bearing Revenue Survey No. 188 was also an ancestral property as the same was purchased from the income derived from cultivating ancestral properties bearing revenue Survey No. 445 which was obtained by the deceased father as a tenant and therefore the suit properties shown in the Plaint were ancestral properties. According to the plaintiff, he had 1/4th share in the suit properties by birth, as the suit properties were divided into four equal shares amongst three brothers and the deceased father. It was also alleged that the deceased father had a right to execute the will in respect of his 1/4th share only and he had no right to execute the will in respect of the whole properties. According to the plaintiff, as his wife had some quarrel with the family members, he was residing separately from his father and his brothers were residing with his father. Therefore, taking advantage of his absence, the defendants have got executed the will of their father in respect of the suit properties. As per the averments made in the plaint, the plaintiff came to know about the will of his deceased father in the year 1982. It was also alleged that the defendants started getting false entries made in the Revenue record and therefore he raised dispute. When the plaintiff raised the dispute, the defendants gave the possession of Revenue Survey No. 445 and 188 to the plaintiff and, since then, the agricultural land is in his possession. The defendants had given assurance to the plaintiff at the relevant time that they will also give half portion of Adalwala Gabhan land and that was also entered into the name of the plaintiff, but the defendants did not give actual possession of the same to the plaintiff. According to the plaintiff, by misleading him, the defendants got their names entered in respect of rest of the properties and raised false dispute and also being pressurised by the defendants he was compelled to give his consent to enter their names in the revenue record in respect of the rest of the properties. It was also alleged that, taking advantage of his absence from his family, the defendants got the will executed in their favour in respect of the suit properties, which is not binding to him and thereafter transferred the land in their favour in revenue Record. The plaintiff, therefore, requested the defendants to give his share in the suit properties but the defendants raised false dispute regarding Adalawala gabhan land and the plaintiff, therefore, realised that the defendants did not want to give his share. The plaintiff, therefore, served a notice dated 5. 2. 1982 on the defendants, for partition and claiming his share in the suit properties. The defendants gave an evasive reply dated 18. 2. 1985 and, therefore, the plaintiff filed the suit for partition of the suit properties against the defendants by claiming his share in the suit properties and also prayed for actual possession of the same. 3. 2 the suit was contested b