J B Pardiwala, J.

This Second Appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiffs and is directed against the judgment and order dated 13th November 2017 passed by the 7th Additional District Judge, Banaskantha at Palanpur, in the Regular Civil Appeal No.16 of 2012 arising from the judgment and decree dated 23rd December 2011 passed by the 2nd Additional Senior Civil Judge, Palanpur, in the Special Civil Suit No.69 of 1995 filed by the appellants herein for compensation under the provisions of Section 357 of the Code of Criminal Procedure read with the provisions of the Fatal Accidents Act, 1855.

2. The case of the plaintiffs can be gathered from the facts recorded by the lower appellate court in its impugned judgment. I may quote the same :

"That the plaintiffs are resident of Madana (Dangiya), Tal. Palanpur. Plaintiff Nos.1 to 5 are wife, daughters, son and mother of deceased Jora Vana respectively. The husband of plaintiff No.1 Jor Vana has been killed by defendants and therefore, hereinafter he has been referred to as 'deceased'. Defendants No.1 to 4 are real brothers. Defendant No.5 is son of uncle Ratna of defendants No.1 to 4. It is further case of plaintiffs that plaintiffs and defendants are relatives. Deceased Jorabhai was son of Hari Ranchhod. The grandfather of plaintiff No.5 Harji and great grandfather of defendants Karshan were real brothers. Karshan having two sons, Savdas & Vano and Savdas is grandfather of defendants. There is undivided agriculture land and partition is not done, but as per the family arrangement, all are cultivating different lands. Deceased Joro adopted by Vana Karshan, uncle of defendants.

It is further case of plaintiffs that on 20.11.1989 plaintiff no.5 and deceased and grandfather of plaintiff no.5 and two sons of plaintiff no.5 Joro and Bhikho and wife of Jora Jatanbhai had gone to their field known as 'Delavala' and deceased Deva Hari, Bhikha Hari and deceased Jora Hari and wife of Jora were making water couse (Neek) from Government Bore No.1 near the fence of their field at that time, at about 10.00 a.m. defendants came there with an intention to make assault on plaintiffs. Defendant no.1 Kala Mashru have Dhariya, Defendant no.2 Naran Mashru have iron Vansi and other defendants have sticks in their hands and defendants started dispute in respect of making water couse and thereafter, plaintiff no.1's husband Jora took at the field of Raydawala and therefore, to save deceased Jora, Deva and Bhikha Hari and wife of Jora, Jatanbai wente there. Defendant no.1 gave dhariya blow on the head of Jora Vana as a result, Joro fell down and defendant no.2 gave Vansi blow on the head of Devo and Bhikha Hari and also told that kill them so that permanent peace could be achieved. Thereafter, all the accused started giving indiscriminate blows with their respective weapons to the three sons of the plaintiff No.5 and wife of Jora, Jatanbai. Due to the serious assault deceased Devo and deceased Jora Vana and Bhikha Hari and Jatanbai had suffered serious injuries over head, hand and leg. It is further case of the plaintiffs that thereafter, plaintiff no.5 ran to the village and informed Rabari Devkaran Jhaverbhai and Jivanbharthi Bawa and came with cart belonging to one Musla Valibhai to the field and found that due to the assault by defendants deceased had died and Devo found near Neak of field of plaintiffs near Neem tree in serious condition and suffering from great pain. Wife of Jora, Jatanben had also suffered serious injuries on hand, leg and other parts of the body. The dead body of deceased and Deva and Bhikha Hari and Jatanbai were taken in cart to dispensary near Chandisar, but as the doctor was not available, they were shifted to Palanpur Civil Hospital at that time, Devo also died. Bhikha Hari and Jatanbai had given treatment in Civil Hospital, Palanpur.

It is further case of plaintiffs that defendants No.1 to 5 had unitedly, by making ille