1. The appellant has filed this First Appeal Under Section 96 of the Civil Procedure Code with Civil Application seeking stay of order dated 24.12.2008 passed by the learned Fourth Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur, passed in Special Civil Suit No.49 of 1992 during the pendency of the appeal.

2. The brief facts of the appellant case are that the respondent Nos.1 to 4 are the original plaintiffs ( respondent No.1 is son of deceased Gangaben Jethabhai daughter of Sakda Raichand who expired in the year 1953 and respondent Nos.2 to 4 are the heirs of Ganiben Maganbhai daughter of Sakda Raichand who expired in the year 1983) who instituted suit against Gangaben widow of Ramchand Sakda Dhos (original defendant No.1) and the appellant – original defendant No.2 ( adoptive son of defendant No.1) as well as against respondent Nos.6 to 16 – original defendant Nos.3 to 13 (defendant Nos.6 to 11 are the heirs of deceased Gangaben Jethabhai who expired in the year 1953 and respondent Nos.12 and 13 are the heirs of deceased Ganiben Maganbhai who expired in the year 1983 and respondent Nos.14 to 16 are the heirs of deceased Samiben (expired in the year 1987 and is daughter of deceased Lakshmiben Sakda who expired in the year 1990). The suit is instituted for partition in respect of land bearing Survey Nos.920/1, 920/2, 923 and House No.720 and 721 as well as Plot Nos.1, 23, 42 to 45, 61 to 64, 66 to 73, 76 to 87 and 90 to 92 of Survey No.618/1 situated at Village : Lakshmipura more particularly described in para1 of the plaint.

3. The deceased Sakda Raichand Dhos had expired on 22.10.1969 leaving behind one son and three daughters viz. Ramchand Sakda, Gangaben Sakda, Ganiben Sakda and Lakshmiben Sakda. Ramchand Sakda expired on 1.3.1989. The deceased Gangaben Jethabhai daughter of Sakda Raichand expired in the year 1953 and Ganiben Maganbhai daughter of Sakda Raichand expired in the year 1983 and Lakshmiben Sakda expired in the year 1990 and her daughter Samiben expired in the year 1987.

4. On death of Sakda Raichand the land bearing Survey No.618/1, 920 and 923 were mutated in favour of his one son Ramchand and two daughters viz. Ganiben and Lakshmiben. The said entry bearing No.2274 was mutated in the village record on 9.12.1969 and was certified on 27.5.1970. Thereafter, Ganiben (mother of respondent Nos.2 to 4 – original plaintiff Nos.2 to 4) and Lakshmiben released their right over the land on the basis of their application and statement. An entry to that effect was mutated in the village record vide entry bearing No.4162 dated 16.2.1981 duly certified on 26.3.1981. During their lifetime or till date the said entry bearing No.4162 has not been challenged and is in the revenue record since the year 1981. Therefore, Ramchand Sakda became the owner of the land and on his death it was inherited by his wife viz. Gangaben widow of Ramchand Sakda. The appellant is the adoptive son of Gangaben widow of Ramchand as per registered adoption deed dated 6.4.1992 registered at Serial No.798 duly registered before the Joint Sub Registrar, Palanpur.

5. It is in the background of the above facts the Special Civil Suit No.49 of 1992 was instituted by respondent Nos.1 to 4 for partition and for mesne profits and for a declaration that the adoption by Gangaben (original defendant No.1) of Shyamalbhai (original defendant No.2) is illegal and void. In short, the mesne profit was prayed on the allegation that the house was in possession of defendant Nos.1 and 2 and were also derived in income from the agricultural land. The issue are framed on 18.7.2001. The original plaintiffs examined six witnesses out of which plaintiff No.1 and plaintiff No.2 deposed before the trial Court. The original defendant Nos.1 and 2 deposed before the trial Court. Thereafter, original defendant No.1 viz. Gangaben expired on 17.5.2008 and she was deleted and the suit stood abated against her. However, in view of his adoptive son on