JUDGMENT :

1. Challenge in this appeal is made by the original plaintiffs to the judgment and decree passed by the Appellate Court below (Extra Assistant Judge, Sabarkantha) dated 01.07.2004 in Civil Appeal No. 64 of 2002.

2. The present appellants - original plaintiffs had filed suit for declaration and permanent injunction against the defendant – brother, being Regular Civil Suit No. 122 of 1998 in the trial Court. The trial Court (Civil Judge (Junior Division), Modasa) allowed the suit vide judgment and decree dated 27.09.2002. The declaration and permanent injunction as prayed for by the plaintiffs was granted, which was challenged before the Appellate Court below by the defendant - brother. The Appellate Court below set aside the judgment and decree of the trial Court and dismissed the suit. This is challenged in this appeal by the plaintiff - brothers.

3. Mr. Jitendra Patel, learned advocate for the appellants – original plaintiffs has submitted that the appellants and the defendant are the real brothers. Three of them were plaintiffs and the eldest one was the sole defendant. It is submitted that the properties of the father were partitioned and in spite of that the defendant - brother was disturbing the possession of the plaintiffs in the properties of their share for which injunction was prayed for against the defendant brother. It is submitted that the trial Court had rightly accepted the claim of the plaintiffs. It is submitted that without framing any specific point for determination and without any valid reason, the Appellate Court below erroneously set aside the judgment and decree of the trial Court. Attention of this Court is invited to the reasons and findings recorded by the Appellate Court below. It is submitted that substantial questions of law have arisen for consideration of this Court. Attention of this Court is also invited to the order of this Court (Coram : Hon’ble Mr. Justice A.M. Kapadia) dated 07.12.2004. It is submitted that those questions be answered in favour of the appellants. It is submitted that this appeal be allowed.

4. On the other hand, Mr. I.M. Pandya, learned advocate for the respondent has submitted that the Appellate Court below has not committed any error and further that the trial Court was in error in answering the issues framed by it in favour of the plaintiffs. It is submitted that no interference be made by this Court. It is submitted that substantial questions of law framed by this Court vide order dated 07.12.2004 be answered against the appellants. It is submitted that this appeal be dismissed.

5. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under:

5.1 The dispute is between four brothers. Three brothers are on one side - they are plaintiffs. The eldest one is the sole defendant.

5.2 The plaintiffs prayed for declaration and permanent injunction over the suit properties. The properties were of their father. They were partitioned also. It was the case of the plaintiffs that, the defendant was disturbing the plaintiffs to enjoy the properties which had come to their share. On the basis of the pleadings of the parties, the trial Court had framed the following issues (translated from original Gujarati), and on the basis of the evidence on record, answered them as under.

“1. Whether plaintiffs prove that the land bearing survey No. 385 and 386 of Village-Malpur was in the ownership of their father Patel Ramabhai Kalabhai ?

(In affirmative)

2. Whether the plaintiffs prove that on the North West side of survey No. 386, there is a well jointly owned by the parties ?

(In affirmative)

3. Whether the plaintiffs prove that there were partitions at different point of time of their joint family properties as mentioned in Para-4 to 8 of the plaint ?

(In affirmative)

4. Whether the plaintiffs prove that the properties partitioned between the parties are in their possession as mentioned in Para-5 of the plaint ? And are they ru