Allowed

Gopal Ram v. Karshan Chand and Ors.

Rajasthan HC18 May 2018CFA/531/2017

Case brief

AI extract

What is this about?

In a partition suit appeal, the High Court allowed the appeal only regarding Plot No.98. Finding the lower court erred in framing the issue and burden of proof regarding the counter-claim about Plot No.98, the matter was remanded to reframe the issue correctly.

What did the court decide?

Appeal allowed to the extent of Plot No.98; matter remanded to trial Court to reframe Issue No.3 and decide the counter-claim within three months.

Gopal Ram Vs Karshan Chand and Ors. — Partition | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil First Appeal No. 531 / 2017

¶3

Gopal Ram S/o Late Chiman Lal, Aged About 65 Years, By Cast Jat, R/o Ward No. 1 Satipura Tehsil and District Hanumangarh.

¶4

----Appellant

¶5

Versus

¶6

Karshan Chand S/o Late Chiman Lal, By Cast Jat, R/o Ward No. 1 Satipura Tehsil and District Hanumangarh.

¶7

KaluRam S/o Late Chiman Lal, By Cast Jat, R/o Ward No. 1 Satipura Tehsil and District Hanumangarh.

¶8

Ramchandra S/o Late Chiman Lal, By Cast Jat, R/o Ward No. 1 Satipura Tehsil and District Hanumangarh.

¶9

----Respondents

¶10

For Appellant(s) : Mr. NR Budania

¶11

For Respondent(s) : Mr. Sushil Bishnoi

¶12

JUSTICE DINESH MEHTA

¶13

Order

¶14

18/05/2018

¶15

The present appeal under Section 96 of the Code of Civil Procedure, has been filed by the appellant against the judgment and decree dated 09.10.2017, passed by the trial Court in a suit for partition filed by the respondent No.1 and 2.

¶16

Since the controversy involved in the present appeal lies in a narrow compass, this Court deems it appropriate to decide the same at this stage itself, lest the otherwise determined rights of the parties flowing from the suit for partition would remain in suspended animation for years together.

¶17

Succinctly stated the facts relevant for the present appeal are that the plaintiffs (respondent No.1 and 2 herein) filed a suit

¶18

(2 of 4)

¶19

[CFA-531/2017]

¶20

for partition of the properties owned by their father, Late Chiman

¶21

Lal in relation to the following property :-

¶22

“1Hkw[k.M la[;k lh&1 iSekbZ”kh 205@5@09 oxZ xt] 2- Hkw[k.M la[;k 86@11 iSekbZ”kh 1111-11 oxZ xt 3- Hkw[k.M la[;k 99 iSekbZ”kh 828 oxZxt”

¶23

In response to the suit so filed, the present appellant (defendant no.2) filed a written statement and a counter claim stating therein that another property of being plot No.98 (1680 sq. yard) owned by their father, was also required to be distributed amongst his heirs.

¶24

In wake of the written statement / counter claim filed by the present appellant, the trial Court framed the issue No.3, which reads thus :-

¶25

“3- vk;k oknhx.k }kjk IykV la[;k 98 esa izfroknh la[;k 1 dh lgefr crkrs gq, vius uke bardky ntZ djokus dh dk;Zokgh dh xbZ gS] tcfd izfroknh la[;k 1 }kjk IykV uEcj 98 esa vius fgLls dk ifjR;kx ugha fd;k x;k gS vkSj u gh vius fgLls ds ,ot esa rcknyk esa vU; dksbZ IykV izkIr fd;k x;k gS \

¶26

& izfroknh la[;k & 1 ”

¶27

Learned counsel for the appellant submitted that the learned court below has erred, not only in framing the issue No.3, but has also erred in placing the burden of such issue upon the defendant No.1.

¶28

In support of his arguments, Mr. Budania, contended that it was the assertion of the plaintiffs that the appellant – defendant No.2 had left his share in plot No.98, in lieu of agricultural land admeasuring 5 Biswa of Chak No.49 LGW; a tubewell; and a licensed gun owned by their father. He argued that since it was

¶29

(3 of 4)

¶30

[CFA-531/2017]

¶31

the assertion of the plaintiffs that the defendant No.1 had received certain moveable / immovable properties in lieu of his rights qua plot No.98, the burden ought to have been placed upon the plaintiffs and not upon the defendant No.1.

¶32

Upon perusal of the pleadings of the parties, this Court agrees with the contention of Mr. Budania, and finds that the issue No.3 has not been properly framed. The issue as framed does not determine the real question flowing from pleadings of the rival parties, as regards Plot No.98.

¶33

Learned court below has equally misdirected itself, by placing the burden of proof of issue No.3, upon defendant No.1, which ought to have been fixed upon the plaintiffs, who having admitted the factum of ownership of Plot No.98, by their father, had asserted that the defendant No.1 had received certain properties in bargain of his rights qua said Plot No.98.

¶34

During the course of arguments, no sooner did learned counsel for the appellant ventured to question the preliminary decree under consideration, about the partition of the properties, already taken place vide the same; than Mr. Sushil Bishnoi, learned counsel for the respondent thwarted his efforts by contending that the appellant has paid court fee only to the extent of plot No.98 and not for all the properties governed by the judgment and preliminary decree, while adding that even the tenor of the appeal makes it clear that the appellant has challenged the judgment and decree, only qua plot No.98.

¶35

In view of the objection aforesaid, Mr. Budania confined his arguments qua Plot No.98 only.

¶36

(4 of 4)

¶37

[CFA-531/2017]

¶38

As the present appeal essentially raises rejection of counter claim filed by the appellant about Plot No.98, therefore, without interfering with the judgment and decree dated 09.10.2017, in relation to other properties, the present appeal is allowed to the extent of Plot No.98 for the reasons aforesaid.

¶39

The matter is remanded back to the trial Court while recasting the issue No.3 as under :-

¶40

“3- vk;k oknhx.k us iapk;r vfHkys[k esa Hkw[k.M la[;k 98 dk bUrdky ntZ djokus dh dk;Zokgh izfroknhx.k dh lgefr ls dh gS rFkk izfroknhx.k }kjk IykWV uEcj 98 es vius fgLls dk ifjR;kx dj ,ot esa 49 ,uthlh esa 5 fcLok d`f"k Hkwfe] uydwi rFkk fpeuyky dh ykbZlsalh cUnqd izkIr dh gS blfy, Hkw[k.M la[;k 98 foHkktu ;ksX; ugh gS \

¶41

& oknhx.k & ”

¶42

The trial Court is directed to decide the issue No.3, framed as aforesaid afresh and decide the counter claim with regard to Plot No.98, within a period of three months from today. All the parties shall have right to lead their evidence qua such issue, in accordance with law.

¶43

The issue No.3 shall be decided expeditiously, preferably before 30^th September, 2018 and thereafter the final decree pursuant to the preliminary decree (after fresh decision of issue No.3) shall be drawn.

¶44

Appeal allowed, as indicated above.

¶45

(DINESH MEHTA), J.

¶46

Himanshu/- 35

Gopal Ram v. Karshan Chand and Ors.

Case brief

What is this about?

What did the court decide?

Gopal Ram v. Karshan Chand and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Suman Vs Mohan Ram

Smt. Kusum Vs Dushyant Kumar

Ritu Jangid Vs Nitin Jangid

Mana Vs Mukesh Kumar and Ors.

Badri Das and Ors. Vs Gokul Chand and Ors.

Ganesha Vs Kesa Ram and Ors.