JUDGMENT & ORDER : Mohinder Pal, J. As both these appeals have arisen from the same judgment and preliminary decree and in order to avoid multiplicity of findings, this Court proposes to decide both these appeals by this common judgment. 2. The judgment and preliminary decree passed in Regular Civil Suit No.11 of 2011 dated 10.12.2014 passed by 6th Addl. (Ad-hoc) Senior Civil Judge, Patan has given rise to the present two appeals. 3. The appellants herein have preferred aforementioned Second Appeals under Section 100 of the Code of Civil Procedure along with Civil Applications; wherein, it was prayed to quash and set aside and/or to stay the execution and operation of the judgment and decree dated 10.12.2014 made in Regular Civil Suit No.11 of 2011 passed by the learned 6th (Ad-Hoc) Senior Civil Judge, Patan and common judgment and decree dated 16.10.2015 passed in Regular Civil Appeal No.11 of 2015 and Regular Civil Appeal No.2 of 2015 by the learned Principal District Judge, Patan. 4. Second Appeal No.247 of 2015 has been preferred by the appellant mainly for allowing the suit of the plaintiff i.e. Regular Civil Suit No.11 of 2011 and Second Appeal No. 248 of 2015 has been preferred by newly added respondents Nos.3 to 6 against the preliminary decree passed in Regular Civil Suit No.11 of 2015. 5. In Regular Civil Suit No.11 of 2011, the learned 6th Addl. (Ad-hoc) Senior Civil Judge, Patan, has passed the following order and passed preliminary decree :- 1. Plaintiffs suit is partly allowed. 2. Counter claim of Defendant No.1 at Exh.9 is allowed. 3. It is hereby declared that, land of revenue Survey No.907 ad-measuring 9-12-09 hectre Are Sq.Mtr. of moje Gugadipati Ta. Dist. Patan is an ancestral joint and undivided property of plaintiff No.1 and Defendant No.1 and both of them are possessing equal share means 50%-50% in the said land. 4. Further, Collector or any subordinate officer of the Collector, whom work is assigned is hereby directed to carry out the partition of the agriculture land of Survey No.907 admeasuring 9-12-09 hectre Are Sq.Mtr. moje Gugadipati Ta. Dist. Patan in equal proportion between plaintiff No.1 and defendant No.1, as per Order 20 Rule 18(1) of the C.P.C. read with Section 54 of the C.P.C. and after doing partition, separate possession of the share be handed over to the plaintiff No.1 and defendant No.1. 5. moje Gugadipati Ta. Dist. Patan in equal proportion between plaintiff No.1 and defendant No.1, as per Order 20 Rule 18(1) of the C.P.C. read with Section 54 of the C.P.C. and after doing partition, separate possession of the share be handed over to the plaintiff No.1 and defendant No.1. 5. Certified copy of this order be sent to the Collector, Patan for compliance. 6. Collector or subordinate officer to whom work is assigned shall carry out the work as directed and shall obtained acknowledgment or receipt of the possession after carry out necessary Rojkam and it will be reported to the Court within 90 days. 7. The cost of the suit shall follow final decree. 8. Preliminary decree be drawn accordingly. 6. Against the aforesaid Regular Civil Suit, two appeals have been preferred. In both the appeals, original defendant No.1 has moved cross objection under Order 41 Rule 22 of CPC. In Regular Civil Appeal No.2 of 2015 original defendant No.1 has moved cross objection at Exh.15 and in Regular Civil Appeal No.11 of 2015 original defendant No.1 has moved cross objection at Exh.6. 7. Learned First Appellate Court dismissed both the appeals and upheld the preliminary decree as well as cross objections preferred by the original defendant by passing the impugned judgments. Aggrieved from this decision, the present appeals have been preferred. 8. Brief facts of this case leading to the present appeals can be summarized as under: 8.1 Plaintiff No.1 along with his son plaintiff No.2 has filed suit against defendant No.1 his brother and defendant No.2 his son being joined as a formal party, claiming that immovable property of revenue survey No.907, ad-measuring 9-12-09 hectre Are Sq.Mtrs. of moje Gugadipati, Tal.& Dist.: Patan (hereinafter referred as "suit property") is a joint undivided and ancestral property of plaintiff No.1 and defendant No.1. Possession of which lying with the plaintiff No.1. of moje Gugadipati, Tal.& Dist.: Patan (hereinafter referred as "suit property") is a joint undivided and ancestral property of plaintiff No.1 and defendant No.1. Possession of which lying with the plaintiff No.1. 8.2 It is contended that, defendant No.1 is trying to sell out said suit property without taking consent of plaintiff No.1 or plaintiff No.2 or defendant No.2 and therefore, plaintiffs have sought relief for declaration that said suit property is undivided property of plaintiff No.1 and defendant No.1 having equal share of both of them and sought the injunction that defendant No.1 alone has no right to transfer, encumber, gift or lease said suit property or he has no right to transfer the said suit property by any means and also asked the permanent injunction to restrain the defendant No.1 from selling, alienating, transferring and encumbering or creating charge upon said suit property. 8.3 Upon service of the summons, defendant NO.1 appears through advocate and filed written statement-cum-counter suit claim at Exh.9 interalia contending that plaintiff No.2 and defendant No.2 are not the necessary party. 8.4 It is also contended that the plaintiff No.1 and defendant No.1 are by religion Hindu and, therefore, Mitakshara School of law is applicable. According to which only plaintiff No.1 and defendant No.1 have equal share in the suit property. 8.5 It is also contended that, the Transfer of Property Act applies to plaintiff No.1 and defendant No.1 and as per Sec.44 of Transfer of Property Act, defendant No.1 has right to sell his undivided share remain in the suit property. After contending such defence, defendant No.1 has set counter claim claiming partition of the suit property between plaintiff No.1 and defendant No.1 in equal proportion. 8.6 Plaintiff No.2 though served, he has not filed any reply to the suit. 8.7 Meanwhile defendant No.3 to 6 have moved application at Exh.19 in the suit, under Order 1 Rule 10 of CPC for joining them as a necessary party to the suit. Said application at Exh.19 came to be allowed and defndant Nos.3 to 6 were came on the record of the suit as a party defendant Nos. 3 to 6. 8.7 Meanwhile defendant No.3 to 6 have moved application at Exh.19 in the suit, under Order 1 Rule 10 of CPC for joining them as a necessary party to the suit. Said application at Exh.19 came to be allowed and defndant Nos.3 to 6 were came on the record of the suit as a party defendant Nos. 3 to 6. After being party defendants, they have filed reply of the court claim advanced by the defendant No.1 at Exh.25 and claimed that beside plaintiff No.1 and defendant No.1 another brother Jayantilal Dahyalal Modi branch of whom are represented by defendant Nos.3 to 6 are also co-sharer of suit property and they hold 1/3 share in the suit property. 8.8 It is also contended by the defendant Nos.3 to 6 that, amongst plaintiff No.1, defendant No.1 and deceased Jayantilal Dahyalal Modi being class-I heirs of deceased Dahyalal Modi, no partition by Meets and bounds ever took place regards to joint and undivided property, and thus, suit property is unpartitioned and joint property containing 1/3 share of plaintiff No.1, defendant No.1 and deceased Jayantilal Dahyalal Modi. 8.9 It is also contended that, in revenue record, suit property is jointly standing in name of plaintiff No.1 and defendant No.1. But, such was a part of the arrangement so as to seal the property from operation of the Land Ceiling Act and, therefore, revenue entry was mutated in the name of palintiff No.1 and defendant No.1 in regards to suit property. But, in fact, no partition was ever made between palintiff No.1. Defendant No.1 and third brother deceased Jayantilal Dahyalal Modi and thus suit property is a joint property. 8.10 It is also contended by the Defendant Nos.3 to 6 that, they have filed R.C.S.No.167/2011 before Principal Senior Civil Court, Patan contending and claiming declaration that suit property is a joint and undivided property of Prafulchandra Dahyalal Modi, Satishchandra Dahyalal Modi and deceased Jayantilal Dahyalal Modi. Therefore, present suit for partition between plaintiff No.1 and defendant No.1 is not maintainable. At this juncture, it is worth to note that, defendant Nos. 3 to 6 have also filed written statement Exh.25 regards to plaintiff's suit. Therefore, present suit for partition between plaintiff No.1 and defendant No.1 is not maintainable. At this juncture, it is worth to note that, defendant Nos. 3 to 6 have also filed written statement Exh.25 regards to plaintiff's suit. 8.11 Plaintiff has filed reply to counter suit at Exh.13 by which plaintiff supported version of the defendant No.3 to 6 and stated that, suit property is a joint property of the plaintiff No.1, defendant No.1 and deceased Jayantilal Dahyalal Modi and each of them have 1/3 share in the suit property. 8.12 Interim application filed by plaintiff at Exh.5 was came to be rejected and Appeal From Order filed against said order was also dismissed. 8.13 On the basis of pleadings of the parties, learned trial Court has framed issues at Exh.9 they are as, (freely translated from Gujarati language). 1. Whether plaintiffs prove that suit property is an ancestral property where plaintiffs and defendants are having joint ownership and undivided share? 2. Whether plaintiffs prove that defendant No.1 is taking away right or ownership of the plaintiffs on the suit property? 3. Whether plaintiffs prove that defendant No.1 has no right to transfer or alienating the suit property without consent of plaintiffs? 4. Whether defendant No.1 proves that in suit property, defendant No.1 possess undivided share? 5. Whether defendant No.1 proves that, he is entitled for the partition of share from the suit property? 6. Whether defendant Nos.3 to 6 proves that jointly they possess 1/3 share in the suit property? 7. Whether defendant No.3 to 6 proves that in suit property plaintiff No.1 and defendant No.1 each possessed 1/3 share? 8. What Order or Decree? 8.14 Learned trial Court after recording evidence advanced by parties to the dispute and after hearing learned advocates for either parties, answered issue No.1 in partly affirmative, issue No.2 in negative, issue No.3 partly affirmative, issue Nos.4 and 5 in affirmative and issue Nos.6 & 7 in negative and for issue No.8 passed earlier noted final order. 9. Being aggrieved and dissatisfied with the said findings and final order, as stated earlier, original defendant Nos.3 to 6 preferred separate appeals. Both these appeals are filed under Section 96 of CPC. In both these appeals, defendant No.1 filed cross claim, claiming relief that defendant No.1's share be partitioned from the north eastern side of the suit property and accordingly, decree was required to be passed. Both these appeals are filed under Section 96 of CPC. In both these appeals, defendant No.1 filed cross claim, claiming relief that defendant No.1's share be partitioned from the north eastern side of the suit property and accordingly, decree was required to be passed. 10. On the other hand, defendant Nos.3 to 6 and appellants of Regular Civil Appeal No.2 of 2015 contended that trial Court had committed error by allowing suit of the plaintiff as well as counter claim of defendant No.1. It was submitted that learned Trial Court has committed an error by holding that suit property was joint and undivided property of the original plaintiff No.1. In fact, the said suit property was a joint and undivided property of the deceased Jayantilal Dahyalal Modi whereupon, each party has 1/3rd share in the suit property. 11. Learned First Appellate Court, after taking into consideration various aspects of the case, rejected both the appeals i.e. Regular Civil Appeal Nos.2 of 2015 and 11 of 2011. Cross objections filed in both these appeals were also rejected. Judgment and preliminary decree passed in Regular Civil Suit No.11 of 2011 was confirmed and upheld. Aggrieved from this decision, the present appeals have come up before this Court. 12. Learned counsel representing the appellants has submitted that after the death of Dahyalal Modi, joint property consisting Survey Nos.907 and 915 were managed by the elder brother-Jayantilal Modi and thus, revenue entry was mutated in his name. However, he has denied the family settlement which took place between three brothers. It has been argued that though their brother Jayatilal D.Modi has denied that no partition took place on record about the joint property, he has accepted that he came to know about such mutation entry in the year 2000. He has also accepted that he has created encumbrance upon land of Survey No.907 by taking loan from the Bank in the year 1987 and accordingly, he has also posted entry in land records in respect of Survey No.907. Later on, in cross examination, he has accepted that he knows posting of the entry No.1694 by which name of deceased Jayantilal D.Modi was deleted from land records of Survey No.907 and vice versa deletion of name of plaintiff No.1 and defendant No.1 from the land record of Survey No.915 since 1987. Learned counsel has further reiterated the arguments raised before the appellate Court. 13. Learned counsel has further reiterated the arguments raised before the appellate Court. 13. On the other hand, learned counsel representing the original defendant Nos.3 to 6 has submitted that entry No.1694 was made for the purposes of ceiling the land of Survey No.907 and 915 from operation of Land Ceiling Act. In this regard, although no documentary evidence is adduced by defendant Nos.3 to 6 but a clue is found from entry No.5786 dated 19.8.1992 produced along with Exh.49, which states that somewhere in year 1982-83, some proceeding with regard to ceiling of the land of Survey No.907 had taken place, however, subsequently Krushi Panch or Agriculture Land Tribunal has set aside such proceeding. It is to be noted that, such proceedings were taken after posting in land record of Survey No.907 was mutated in favour of plaintiff No.1 and defendant No.1. While relying upon these submissions, he has prayed to quash and set aside the original judgment passed by the Court below. 14. This Court has considered the submissions made by both the sides. 15. Case of the original plaintiff is centered around the point that he along with his brother, Modi Satishchandra were owners of the joint and undivided property of plaintiff No.1 and defendant No.1 and both of them are possessing co-share means 50%-50% (in equal proportion) on the said land i.e. land of Survey No.907 ad-measuring 9-12-03 Hectre Are and Sq.Mtrs. moje Gugadipati Ta. Dist. Patan. 16. On the other hand, case of defendant No.1 from the very beginning is that this land was belonging in equal proportion between plaintiff No.1 and defendant No.1, as per Order 20 Rule 18(1) of CPC read with Section 54 of CPC and after partition, separate position of the share be handed over to both of them. Lastly, cross objections on behalf of third brother, original defendant Nos.3 to 6 i.e. Modi Jayantilal (now represented by his Legal Representatives) is on the point that Revenue Survey No.907 was joint property of three brothers, namely, (1) Modi Prafulchandra, (2) Modi Satishchandra and (3) Modi Jayantilal and land was required to be partitioned in equal share between them. 17. This Court has gone through the judgment passed by the trial Court as well as the judgment passed by the appellate Court. 17. This Court has gone through the judgment passed by the trial Court as well as the judgment passed by the appellate Court. Both these judgments are exhaustive and concurrent in concluding that family partition has taken place between the brothers and as per this family partition, Revenue Survey No.907 has gone to the share of original plaintiffs-Modi Prafulchandra and his brother Modi Satishchandra. Similarly land of Survey No.915 has gone to the share of third brother Modi Jayantilal. After joining defendant Nos.3 to 6 as party in the proceedings, they have filed written statement wherein no reference regarding Survey No.915 has been made. It was never pleaded that Modi Jayantilal was entitled to 1/3rd share in the land of Survey No.907. However, later on, Modi Jayantilal seems to have changed his mind and has claimed his share in revenue entry No.907 ignoring the mutation and earlier settlement and the fact that he was already in possession of Survey No.915 in view of the family settlement, which has taken place between the brothers long time before filing of suit before the trial Court. In view of concurrent findings by the Courts below, this Court is of the view that the present appeals being devoid of any merits, are dismissed. 18. In view of afore-going discussion, both these appeals are dismissed. The judgment and preliminary decree dated 10.12.2014 made in Regular Civil Suit No.11 of 2011 passed by the learned 6th (Ad-Hoc) Senior Civil Judge, Patan, is confirmed and common decision of appellate Court passed on 16.10.2015 in Regular Civil Appeal No.11 of 2015 and Regular Civil Appeal No.2 of 2015 by the learned Principal District Judge, Patan are confirmed and upheld. 19. In view of the above, no order in Civil Applications and the same are disposed off accordingly.