Uttarakhand High Court

SA/95/2005 on 3 June, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

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                                      SA No. 95 of 2005


                                      Hon'ble Rakesh Thapliyal, J.

1. Mr. Aditya Singh, learned counsel for the appellant.

2. Mr. D.N. Sharma, learned counsel for the respondent.

3. The suit for partition was filed by the appellant/plaintiff against his real brother and the basis of the suit was the alleged Will dated 08.07.1978 executed by the father of the appellant and the respondent, who died on 18.09.1989. The Trial Court while deciding the suit framed one such an issue with regard to the Will dated 08.07.1978 and the issue was decided in favour of the plaintiff/appellant by observing that the alleged Will dated 08.07.1978 is manipulated and forged one.

4. Being aggrieved with the judgment of the Trial Court the respondent/defendant preferred a First Appeal and the appeal was allowed, but while allowing the appeal the finding as drawn by the Trial Court in respect of issue no. 1, which pertains to the Will, was not dealt with rather the First Appellate Court dealt with the another document, i.e. the family settlement dated 05.06.1991.

5. The question is whether the First Appellate Court can reverse the finding of the Trial Court without dealing with the finding in respect of issue no. 1. On perusal of the question of law, which was framed at the time of admission of the appeal, this court is of the view that the substantial question of law on which the instant second appeal was admitted was in fact beyond the subject matter of the suit since no issue was framed by the Trial Court in respect of the family settlement dated 05.06.1991.

6. Put up this matter on 12.06.2025.

7. On that day learned counsel for both the parties may either address on the substantial question of law on which the appeal was admitted or to suggest another substantial question of law.

(Rakesh Thapliyal, J.) 03.06.2025 PR