JUDGMENT :

1. Being aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court, Surat passed in Regular Civil Appeal No. 33 of 1981 dated 17.11.1981, the original defendant has preferred this Second Appeal under Section 100 of CPC. The appellant is the original defendant-respondent and the present respondent is the original plaintiff-appellant. It is contended that the respondent had filed a Suit against present appellant being Suit No. 108/1978 for the partition alleging that the properties are of the joint family properties and possession of his 1/2 share in the suit property. According to him, the trial Court, by its judgment and decree dated 31.12.1980, dismissed the suit of the plaintiff against which the plaintiff has filed First Appeal No. 33/1981, wherein the First Appellate Court allowed the Appeal filed by the plaintiff.

2. For the brevity and convenience the parties are referred to herein as plaintiff and defendant.

3. The defendant has challenged the judgment of the First Appellate Court on the ground that the First Appellat Court has erred in holding that the Diwala Gausa was not in sound state of mind and he did not understood the effect of th