1. This Second Appeal under section 100 of the Code of Civil Procedure, 1908 is at the instance of the plaintiffs, who had preferred Regular Civil Suit No. 3 of 1980 in the Court of the learned Civil Judge (Junior Division) Kalol (N.G.) praying for partition of the suit property, which was in possession of the defendants/co-mortgagors, who redeemed the mortgage of the property, and for passing necessary order for one half share in the property with possession.

2. The case of the plaintiffs in the suit is that the suit property was ancestral property and was mortgaged with one Shri Shah Kacharadas Sakalchand on 27.09.1902 by taking Rs.981.00 and thereafter, by accepting further amount of Rs.362.00, one more deed of mortgage was executed on 15.6.1934, that the plaintiffs have 1/2 share in the suit land and the defendants without informing the plaintiffs redeemed the mortgaged property, that when on 1.7.1978 the plaintiffs requested the defendants to also get their names entered into the revenue records, the defendants did not give any heed to the request of the plaintiff and, therefore, the plaintiffs had to make an application to the Talati of the village on 7.7.1978 and on such application, when the Talati issued notice to the defendants, the defendants resisted the application of the plaintiffs denying that the suit property was mortgaged, that the dispute as regards entry was taken before the Deputy Collector and the Deputy Collector held that the dispute between the parties was of civil nature and the parties should get the dispute resolved through Civil Court. The plaintiffs have therefore filed suit to get their 1/2 share in the suit property.

3. The suit of the plaintiff was resisted by the defendants by filing written statement at Exh. 12 stating that it was not correct that the mortgage was redeemed without informing the plaintiffs, that at no point of time, the suit property was mortgaged with Shah Sakalchand, that the defendants had no knowledge about the execution of deed dated 15.6.1934, that after the death of common ancestor Shri Godadji, the suit property had come to the share of the defendants and thus, the defendants had become absolute owner of the suit property, that the defendants had then continued to be in possession of the suit property, that the suit property was then divided into different blocks, that the suit property was earlier running in the name of the forefathers of the parties but when the suit property came in the share of the defendants, the entry in revenue record came to be mutated in their names, that the suit of the plaintiffs was time barred, that even if the suit property was mortgaged as alleged, the suit for redemption of mortgage would be time barred, that no cause of action has arisen for the plaintiffs to file the suit for the relief claimed in the suit.

4. On the basis of the pleadings, learned trial Judge framed issues at Exh. 27 and the main issues were to the effect that whether the suit property was ancestral property and whether the suit property was mortgaged with Shah Kacharadas Sakalchand being the guardian of Mafatlal Tarbhovandas for an amount of Rs.981.00 and as to whether there was further execution of mortgage deed dated 15.6.1934 with the said person by taking more amount of Rs.362.00.

5. On the basis of the evidence available, the learned trial Judge came to the conclusion that the suit property was ancestral property, and mortgaged by the forefathers of the parties. The mortgage was then redeemed and the suit property came in the possession of the defendants as co-mortgagors and co-owners of the property. Learned trial Judge found that the suit for partition was within the time limit and thus, allowed the suit and ordered the defendants to give one half share with possession to the plaintiffs on plaintiffs paying their contribution of the mortgage amount to the defendants.

6. The defendants challenged the above judgment and decree by filing Regular Civil A