Dismissed

Gulab Singh Son of Shri Chiranjee, v. Gordhan Son of Shri Chiranjee

Rajasthan HC20 Jan 2022CSA/102/2021

Case brief

AI extract

What is this about?

The court dismissed this Civil Second Appeal. It held that the plea regarding unpartitioned ancestral vacant land was raised for the first time in the second appeal without prior pleading, issue framing, or evidence in the compromise settlement, and therefore could not be entertained.

What did the court decide?

The stay application and all pending applications also stand dismissed.

Gulab Singh Son of Shri Chiranjee, Vs Gordhan Son of Shri… — Partition | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 102/2021

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Gulab Singh Son Of Shri Chiranjee, R/o Kamla Road, Bada, Mohalla, Bharatpur, Tehsil And District Bharatpur (Raj.)

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----Appellant

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Versus

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Gordhan Son Of Shri Chiranjee

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Narayan Singh Son Of Shri Chiranjee (Ex- Party Proceeding), R/o Kamla Road, Bada, Mohalla, Bharatpur, Tehsil And District Bharatpur (Raj.)

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----Respondents

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For Appellant(s) : Mr. Amitabh Jatav, Advocate (through VC)

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HON'BLE MR. JUSTICE PRAKASH GUPTA

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Judgment

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20/01/2022

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This Civil Second Appeal has been filed by the appellant-plaintiff (for short, 'the plaintiff') against the judgment and decree dated 20.3.2021 passed by ADJ No.2, Bharatpur (for short, 'the First Appellate Court') in Original Civil Appeal No. 27/2018, whereby the appeal filed by the plaintiff has been dismissed and the judgment and decree dated 23.4.2018 passed by Civil Judge, Bharatpur (for short, 'the trial court') in Original Civil Case No. 35/2015 partly dismissing the plaintiff's suit for partition and permanent injunction has been affirmed.

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Facts of the case are that the plaintiff filed a Civil Suit against the respondents-defendants (for short 'the defendants'), where it was pleaded that the plaintiff and the defendants are the

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(2 of 3)

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[CSA-102/2021]

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members of joint family. They are having ownership and possession over an ancestral residential house and vacant land in Bala Mohalla, Kamla Road, Bharatpur. In the aforesaid ancestral residential house, the plaintiff and defendants are having 1/3rd equal share and they are in possession of their respective shares on the basis of partition and using and occupying the same. It was further pleaded that since the aforesaid vacant land in the southern side ahead the portion of Narayan is also ancestral, the plaintiff is entitled to get his share therein.

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The defendants filed their written statement, where it was pleaded that in the presence of plaintiff and defendants and with their consent, a compromise / settlement was executed by their father on 25.5.1992 on which the plaintiff and the defendants alongwith witnesses put their signature and their father put his thumb impression. As per the aforesaid compromise / settlement, defendant Gordhan was given 22 Ft. X 6 inches long and 12 Ft. X 6 inches wide vacant land in the southern side of defendant Narayan's land. The defendant Gordhan is in possession of said piece of vacant land and using and occupying the same.

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Necessary issues were framed. Evidence was led by both the parties.

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After hearing the arguments, the trial court vide its judgment dated 23.4.2018 partly dismissed the plaintiff's suit. On an appeal filed thereagainst, same also came to be dismissed by the first appellate court vide judgment dated 20.3.2021. Hence, this second appeal has been filed.

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Learned counsel for the plaintiff submits the plaintiff and defendants are the members of joint family. There is a vacant land admeasuring 22.5 X 12.5 ft. in the southern side of Narayan's

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(3 of 3)

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[CSA-102/2021]

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house, which is ancestral and which was not partitioned. The plaintiff is having 1/3rd share in the ancestral vacant land, therefore, the same was also required to be partitioned. However, the learned courts below have not appreciated this aspect of the matter. Hence, the impugned judgments and decrees are perverse and based on misreading and non reading of material evidence. Thus, this appeal deserves to be allowed.

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Heard. Considered.

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As per the averment of learned counsel for the plaintiff, vacant land in the southern side ahead the portion of Narayan remained unpartitioned, but neither there is any pleading of the plaintiff to this effect nor an issue in that regard was framed nor a reference of the vacant land was given in compromise / settlement dated 25.5.1992 (Ex.-A/1). This point has been raised by the plaintiff for the first time in this second appeal, which cannot be raised at this stage.

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Thus, both the courts below having rightly considered the evidence led by the parties in the suit and there being concurrent finding of facts recorded by both the courts below, this Court is not inclined to interfere with the same. Even otherwise, when there has been a concurrent finding that the vacant land was not an ancestral property and the counsel for the plaintiff having failed to point out any question of law much less substantial question of law, this second appeal is liable to be dismissed, which stands dismissed accordingly.

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Consequent upon the dismissal of the appeal, the stay application and all pending applications, if any, also stand dismissed accordingly.

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(PRAKASH GUPTA),J

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DK/15

Gulab Singh Son of Shri Chiranjee, v. Gordhan Son of Shri Chiranjee

Case brief

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What did the court decide?

Gulab Singh Son of Shri Chiranjee, v. Gordhan Son of Shri Chiranjee

Case brief

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What did the court decide?

What the court decided

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