Allahabad High Court
Lalmani (Deceased) And 15 Others vs Indramani (Deceased) And 8 Others on 13 March, 2023
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- SECOND APPEAL No. - 34 of 2023
Appellant :- Lalmani (Deceased) And 15 Others
Respondent :- Indramani (Deceased) And 8 Others
Counsel for Appellant :- Ram Mani Upadhyay,Gaurabh Srivastava
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the appellants.
Instant second appeal has been filed by the defendants-appellants assailing the judgment and the preliminary decree passed by the trial court in a partition suit filed on behalf of the plaintiff-respondent which was partly affirmed by the first appellate court. Indramani (substituted by is L.Rs. Respondents No.1/1 to 1/7) had filed suit for partition of the property in question claiming his right and title to the extent of 1/4th share. Details of the case has already been mentioned in the judgment of the trial court as well as first appellate court, therefore, there is no need to reiterate the same facts. Both the courts below have concurrently held that the plaintiff, Indramani, has 1/4th share in the property in question.
Learned counsel for the defendants/appellants has tried to make out a new case with respect to the certain portion of property in partition suit which is the subject matter of alleged sale deed of 1979. It is submitted that subject matter of sale deed of 1979 is not the joint property therefore same cannot be made subject matter of the partition suit.
Perusal of the written statement (Annexure No.2) reveals that no such pleading has been made by the defendants in the written statement to exclude the subject matter of alleged sale deed of 1979. Learned counsel for the appellants has drawn attention of the Court towards the paragraph No.7 of the memo of civil appeal (Annexure No.3) wherein there is a whisper with respect to the sale deed of 1979.
Perusal of the judgment passed by the trial court as well as first appellate court reveals that no such plea has been raised and pressed on behalf of the defendants denying the right and title of the plaintiff over the property which is allegedly subject matter of registered sale deed of 1979. Neither any issue has been framed by the trial court in this regard nor any point of determination has been formulated by the first appellate court in deciding the appeal. At the second appeal stage, learned counsel for the appellants has tried to make out a new case which is not sustainable in the eyes of law. Moreover, no such ground has been taken in the memo of second appeal. Trial Court has passed the preliminary decree in the partition suit acknowledging the right and title of the plaintiff over the property in question to the extent of 1/4th share which has rightly been affirmed by the first appellate court in deciding the civil appeal filed on behalf of the defendants-appellants.
I did not find any illegality, perversity, infirmity or ambiguity in the judgment passed by the first appellate court so as to warrant the indulgence of this Court in exercise of its second appeal jurisdiction under Section 100 of C.P.C. No substantial question of law is made out in the instant second appeal to interfere in the judgment and decree passed by the trial court in the partition suit which has been partly affirmed by the first appellate court.
Resultantly, instant second appeal, being misconceived and devoid of merits, is dismissed with no order as to the costs.
Order Date :- 13.3.2023
Md Faisal
