Ramchand vs. Musammat Mohini

S.A.No.209/2006

18.09.2015

Shri U.K. Shukla, learned counsel for the appellant.

Heard on the question of admission.

This Second Appeal under Section 100 of the Code of Civil Procedure is filed against the judgment and decree dated 28.11.2005 in Regular Civil Appeal No.95-A/2005, by the Court of III Addl. District Judge (Fast Track) Sidhi, arising out of judgment and decree dated 26.9.2005, passed in Civil Suit No.11-A/2000, by the Court Civil Judge Class-I, Devsar.

The respondents/plaintiffs filed a suit for partition of the ancestral property. The suit remained ex-parte and a judgment and decree was passed against the appellant. After an unsuccessful first appeal, this Second Appeal under Section 100 of the Code of Civil Procedure, has been filed by the appellant.

Learned counsel for the appellant contended that in terms of the law looking to the fact that a partition was accepted by the respondents/plaintiffs before the Sub Divisional Officer (Revenue), the appellant was entitled to 1/2 share in the entire property inherited by his father. However, instead of considering that aspect, accepting the claim of the respondents/plaintiffs, 1/3 share in the property is given to the appellant, therefore, the impugned judgment and decree is liable to be set aside.

If at all there was any settlement in between the parties before the Sub Divisional Officer (Revenue) and there was a declaration of relinquishment of the share in the said property by the parties, that was required to be proved in the Court. As the appellant had proceeded ex-parte, there was no evidence available in that respect and, therefore, if the finding is recorded by the Courts below that the property being coparcenary, each coparcener would be entitled to 1/3 share in the property such a finding, cannot be said to be against the law. No error of law is found in the judgment of the Courts below.

No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.

(K.K.Trivedi) Judge

A.Praj.