[1] This appeal under Section 100 of the Civil Procedure Code is at the instance of the original plaintiff, who filed the suit being Regular Civil Suit No.118 of 1984 for partition of land bearing survey No.84 admeasuring 1 Acre – 3 Guntha, situated in the sim of Village : Anandpura, Taluka : Kadi, District : Mehsana.

[2] As per the case of the appellant in the plaint, there was an agreement entered into between the parties for division of the ancestral property on 10.05.1976. The properties which were mentioned in the said agreement, are the ancestral properties. As regards the suit property, the appellant as well as respondent have equal share in the property after the death of their mother. Till the death of mother, both the brothers were to equal share in the expenses for looking after the mother. The mother of both the parties expired on 03.08.1981 and though on the basis of the agreement, the appellant was entitled to get one half share in the suit property, yet the respondent did not give one half share in the suit property to the appellant. On 14.07.1984, notice was given to the respondent to partition the suit property and to give share of the suit property to the appellant. Still, the respondent did not act pursuant to the notice and did not give one half share to the appellant in the suit property, therefore, the cause of action for filing the suit has arisen.

[3] The suit was resisted by the respondent on various grounds including that the appellant did not act and perform his part of the contract, that at no point of time, the appellant paid any amount towards expenses for looking after the mother as agreed between the parties, that since, the appellant committed breach of condition of the agreement of partition of the property, the appellant is not entitled to get share in the property. In the written statement, in paragraph No.10, the respondent has stated that if the appellant is ready and willing to act as per the condition of the agreement at Ex.45 and if he is ready to partition the other joint properties, the respondent was ready to give his share in the disputed suit property.

[4] The appellant examined himself at Ex.40 and his witnesses and also produced documentary evidence on record including agreement between the parties at Ex.45. The respondent examined himself at Ex.40.

[5] One of the issues framed at Ex.10 by the learned trial Judge is whether the appellant proves that the land bearing survey No.84 was jointly held for the purpose of maintaining the mother of the parties and to divide the said land after the death of the mother. As per the agreement at Ex.45, both the parties i.e. appellant as well as respondent were to share expenses for looking after their mother till she lived and the land bearing survey No.84 was to be kept intact till the mother remained alive.

[6] On the basis of the evidence available on record, the learned trial Judge dismissed the suit by judgment and decree dated 10.03.1986. The appellant unsuccessfully carried the matter before the Lower Appellate Court by filing Regular Civil Appeal No.24 of 1987 in the Court of Assistant Judge, Mehsana. Learned Appellate Judge has recorded that the suit, in his opinion was for specific performance of the contract dated 10.05.1976 and, therefore, it was necessary to find out whether the plaintiff was ready and willing to perform his part of contract before he was awarded the relief in the suit. The learned Appellate Judge further recorded that the appellant was not found ready and willing to perform his part of the contract and, therefore, he has no right to compel the respondent to perform his part of the contract. It is observed that since the appellant was not ready and willing to perform his part of the contract, he could not claim for partition of the suit field on the basis of the contract dated 10.05.1976. Mainly on the above said grounds, the learned Appellate Judge dismissed the appeal of the appellant and confirmed the j