Surajnarayan Saini S/O Late Shri ... vs Mohan Lal Saini S/O Late Shri Gopal ...
2022 Latest Caselaw 3017 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                  S.B. Civil First Appeal No. 79/2022

Surajnarayan Saini S/o Late Shri Gopal Lal Saini,
                                                           ----Appellant-plaintiff
                                     Versus
Mohan Lal Saini S/o Late Shri Gopal Lal Saini & ors.
                                                   ----Respondent-defendants

For Appellant(s)           :     Mr. Ankit Sethi
For Respondent(s)          :



              HON'BLE MR. JUSTICE SUDESH BANSAL

                                      Order

08/04/2022

The appellant-plaintiff himself filed civil suit for partition

claiming 1/5th share in the suit property, however during the

course of trial, he admitted that he is already having actual

possession over the 1/4th share of the suit property.

The trial court while decreeing the plaintiff's suit vide

judgment and decree dated 16.10.2021 passed in civil suit

No.02/2013/(895/2014) by Additional District Judge No.4, Jaipur

Metro-1, Jaipur has clearly observed that the plaintiff himself is

having possession over 1/4th share and his claim for partition of

1/5 share, seems to be pre-posterous. However, the trial court has

partly decreed the civil suit protecting the possession of plaintiff as

well.

The appellant-plaintiff may not raise any grievance for his

own share against the judgment and preliminary decree for

partition dated 16.10.2021, however he has preferred this first

appeal for the reason best known to him.

(2 of 2) [CFA-79/2022]

Learned counsel for appellant has argued that the plaintiff

should have been given 1/5 share in the property but the trial

court has accorded 1/4th share for which he is having possession.

Since the issue of partition is involved in the present appeal

which can be adjudicated with the consent of parties also, if all

parties have agreed to allocate the share as per their choice. The

first appeal is continuation of the suit.

Considering the arguments raised by learned counsel for

appellant, the respondent may also be heard on the issue.

In that view of the matter, the appeal may be admitted to

be heard for respondents.

Issue notice of the appeal.

In the given facts and circumstances, where the plaintiff has

already been granted 1/4th share in the suit property where he is

having possession, there is no case for grant of any interim relief

during pendency of this first appeal. However, the trial court may

proceed with the further proceedings for preparation of the final

decree.

The judgment passed by the trial court in relation to the

permanent injunction shall operate during the course of

preparation of the final decree.

No additional interim stay is required to be passed by this

Court. Since this Court has allowed the trial court to proceed with

the preparation of final decree, there is no need to summon the

record of the trial court.

With the aforesaid observations, the stay application stands

disposed of.

(SUDESH BANSAL),J

TN/11

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