In this first appeal challenging a partition suit's dismissal, the appellant admitted the property was self-acquired by an ancestor, limiting their claim. The High Court relied on Supreme Court precedent to dismiss the appeal summarily without calling for the trial record.
The appeal is dismissed without calling for the record of the trial court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil First Appeal No. 285/2018
Lrs Of Late Bhura Ram D S/o Mupaji
----Appellant
Versus
2/5. Geeta D/o Velaji
All B/c Mali, R/o Barloot, Presently Residing At Purana Bus Stand, Jalore, Tehsil And District - Jalore.
----Respondents
For Appellant(s) : Mr. Sandeep Shah.
HON'BLE MR. JUSTICE P.K. LOHRA
Order
26/09/2018
The instant first appeal by plaintiff-appellants challenges judgment and decree dated 11.04.2018, passed by District Judge, Jalore (for short, ‘learned trial Court’). The learned trial Court, by
(2 of 3)
[CFA-285/2018]
the impugned judgment, dismissed the suit of appellants for partition and perpetual injunction.
I have heard learned counsel for the appellants and perused
the impugned judgment.
Although, appellants have prayed for relief of partition and perpetual injunction vis-á-vis suit property, but in the plaint itself they have very candidly admitted that the property in question is a self-acquired property of Mupa Ram, who is ancestor of the other respondents. In a suit of partition, a co-sharer is entitled to claim partition to the extent of his share. As the learned Court below has recorded a finding of fact based on the submissions made in the plaint and evidence tendered by rival parties, in my opinion, it would not be appropriate to call for record in the matter. After amendment in Rule 11 Order 41 CPC, an appeal can be dismissed by the Court without requisitioning the record but for recording reasons that appeal is bereft of any merit. The reasons are apparently forthcoming from the impugned judgment and learned counsel for the appellants is unable to make any submission to counter the said finding of the learned Court below.
Supreme Court in case of U.P. Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha & Ors. [(2011) 6 SCC 456], while interpreting the amended Rule 11(1) of Order 41 CPC, has held that dismissal of first appeal in limine is permissible, but has put a rider that it is required to be dismissed by a reasoned order. The Apex Court made following observations in Para 7, 9 & 10:
(3 of 3)
[CFA-285/2018]
merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons.
way of knowing whether the appellate court has examined the appeal before deciding that it did not deserve admission. As a limited right to appeal to the Supreme Court is available against the appellate judgments of the High Court, unless there are reasons in the order of dismissal, it will not be possible for the Supreme Court to examine whether the High Court has rightly rejected the appeal. The appellant who has filed the first appeal in pursuance of a statutory right to file such appeal, paying necessary court fee, can legitimately expect reappreciation of the evidence and redetermination of the questions raised, unless the statute providing for the appeal provides otherwise.
In this view of the matter, I find no merit in the appeal, and therefore, feel disinclined to interfere with the impugned judgment rendered by learned Court below.
Consequently, appeal fails and the same is hereby dismissed.
Twinkle Singh/15
2 issues framed by the court
Whether the High Court can dismiss a first appeal by a reasoned order under amended Rule 11 of Order 41 CPC without calling for the record of the trial court.
Whether the appeal in this matter is bereft of merit and deserves to be dismissed in limine.
Colour shows how this judgement treated each authority
U.P. Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha & Ors.Referred¶34
U.P. Avas Evam Vikas Parishad Vs. Sheo Narain Kushwaha & Ors. [(2011) 6 SCC 456] · Who else cites this
1 provisions across 1 enactments
Chhaganlal S/o Bhooraram and others
Danaram S/o Mupaji and others
P.K. Lohra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
