Laxmangarh, Distt. Alwar v. R/o Badoda Mew, Teh. Laxmangarh Distt. Alwar

Judgment

1. Muthri D/o Kishanlal W/o Bhagwandas aged about 68 years R/o Bhadurpur Teh. Alwar Distt. Alwar

2. Ramadai D/o Kishanlal W/o Kishanlal aged about 72 years R/o Badoda Mew, Teh. Laxmangarh Distt. Alwar

3. Harpyari D/o Kishanlal W/o Babulal, aged about 52 years R/o Bandikui, Teh. Mahuwa Distt. Dausa ----Respondents For Appellant(s)

: Mr. Mohit Gupta For Respondent(s) : None HON'BLE MR. JUSTICE MANEESH SHARMA 26/05/2025 Order

1. The matter has been listed in the orders category for service of notices upon respondent No.3. From the record it reveals that all the parties of the appeal are happen to be real sisters and notice to respondent No.3 was issued on 13.09.2017 and from last 8 years matter is pending for service upon respondent No.3 for want of fresh address, it is also evident that respondent No.3 did not led any evidence in the suit rather filed a supportive written statement in favour of the plaintiff-appellant.

2. From the record of the case, it is reflected that the respondent No.3 i.e. Harpyari has supported the case of the plaintiff. Two other main contesting respondents, namely, Muthri [2025:RJ-JP:22091] (2 of 7) [CSA-515/2017] and Ramadai are already served and in that view of the matter, service upon the respondent No.3 is dispense with at this stage. The arguments of the appeal were heard on the question of admission of the second appeal.

3. Despite service of notices upon respondent Nos.1 and 2, no one has appeared even in the second round.

4. The appellant has filed present second appeal under Section 100 CPC, challenging the judgment and decree dated 03.06.2017 passed by the Additional District Judge, Laxmangarh, District Alwar in Appeal No.03/2011, affirming the judgment and order dated 08.02.2011 passed by the Civil Judge(Senior Division) Laxmangarh, District Alwar in Civil Suit No.25/2008 whereby the suit for partition has been dismissed.

5. Brief facts of the case are that the plaintiff filed a suit for partition in respect of suit property while stating that the suit property was owned by the father (Kishanlal) of the plaintiff and defendants, who expired in the year 1990 and the mother (Smt. Ramli Devi) of the parties also expired in the year 1998. It was further pleaded that after the death of father and mother, the plaintiff and defendants No.1 to 3 are having equal share i.e. 1/4th each in the suit property. It was also pleaded that the defendant No.1 is in possession of the suit property and not ready and willing for partition of the suit property. Under the said circumstances, the plaintiff-appellant prayed for a decree of partition of 1/4th share of the suit property and also sought a permanent injunction.

6. The defendant No.1 filed detailed written-statement, wherein she has denied the averments made in the plaint and further stated that soon after the marriage, the defendant No.1 became [2025:RJ-JP:22091] (3 of 7) [CSA-515/2017] widow and from 1968, she is residing with his father Kishanlal. She further stated that the suit property was the self-acquired property of Kishanlal as he purchased the same in an auction on

27.04.1938 and constructed the house over the same out of his self-acquired property. She further stated that the father of the defendant Kishanlal had executed a Will dated 05.06.1991 in favour of defendant No.1. Therefore, she is the absolute owner of the property and property in question is impartible. She further stated that it is incorrect to state that the plaintiff is having any right or share in the property. She further submitted that the plaintiff has no right to seek any share in the property or to seek partition in the suit property.

7. Defendant No.2 filed a written-statement to the plaint and submitted that the father of the parties i.e. Kishanlal has executed a Will in favour of the defendant No.1; therefore, the plaintiff has no right to seek partition in respect of suit property.

8. Defendant No.3 supported the version of the plaintiff and submitted that she has no objection, in case, the suit is decreed and property is divided in equal shares of 1/4th each.

9. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:- ^^1- vk;k fookfnr tk;nkn dk 1@4 Hkkx okfn;k ds LokfeRo o dCts dh tk;nkn gS\ 2- 3- 4- vk;k fookfnr tk;nkn esa ls okfn;k 1@4 Hkkx dks rdlhe djkus dh vf/kdj.kh gS\ vk;k fookfnr tk;nkn dh izfroknh;k la[;k&1 tfj;s olh;rukek ekfyd o dkfct gS\ vuqrks"k\** [2025:RJ-JP:22091] (4 of 7) [CSA-515/2017]

10. In order to substantiate the averments of the plaint, the plaintiff examined herself as PW-1, PW-2 Khemchand and PW-3 Roopsingh.

11. The respondents in order to controvert the averments of the plaint and the evidence so adduced examined DW-1 Muthri, DW-2 Shriram Sharma, DW-3 Karimatya and produced documents.

12. Thereafter, the learned Trial Court heard the learned counsel for the respective parties and vide its judgment dated 08.02.2011, dismissed the suit filed for partition while observing that in view of Will dated 15.06.1991, executed by Late Sh. Kishanlal in favour of defendant No.1 which is duly proved from the evidence of DW-2 Shriram Sharma and DW-3 Karimatya. The property is not liable to be partitioned and accordingly, the suit for partition is dismissed.

13. Being aggrieved of which, the plaintiff preferred a regular first appeal under Section 96 CPC and the learned Appellate Court also heard the arguments of the respective parties and after carefully examining the record of the case has dismissed the appeal filed by the plaintiff-appellant, while reiterating the ground of dismissal passed by the learned Trial Court.

14. Learned counsel for the appellant submits that the impugned judgments passed by both the courts below are arbitrary and perverse; therefore, the same may be set aside and the suit filed by the plaintiff-appellant be decreed in terms of the relief claimed therein.

15. Heard learned counsel for the parties and perused the record. [2025:RJ-JP:22091] (5 of 7) [CSA-515/2017]

16. The plaintiff has filed the present suit for partition with regard to the property owned by his father Kishanlal, on the ground that after the death of Kishanlal in the year 1990 and his wife in the year 1998, the property in question devolves upon the plaintiff and defendants-respondents in equal share, therefore, she is entitled for decree of partition. The said claim of the plaintiff was refuted by the defendant No.1 on the basis of Will Ex.A9 dated 05.06.1991 and it was stated that since it was a self- acquired property of Kishanlal, therefore, he had all rights to execute the Will and the Ex. A-9 Will of Kishan Lal is duly proved by the evidence of DW-2 Shriram Sharma and DW-3 Karimatya. It is also reflected from the record that the defendant, being a widow, had resided with his father since 1968 and out of love and affection, his father executed the said Will in her favour and it is also evident from record that all other daughters are settled in their matrimonial homes.

17. That from the evidence on record, it is evident that both the courts below have considered the pleadings of the parties and evidence available on record in detail and both the courts below concurrently held that in view of the execution of Will Ex.A9 dated

05.06.1991, which is duly proved from the statements of DW-2 and DW-3. The plaintiff is not entitled to seek partition of the house in question. The proposed question of law enumerated in the memo of appeal is related to the question of fact and does not fall within the purview of substantial questions of law.

18. A bare perusal of the findings recorded by the learned Trial Court as well as of the learned First Appellate Court reveals that both the courts below have considered the pleadings of the parties [2025:RJ-JP:22091] (6 of 7) [CSA-515/2017] and evidence available on record at length and from the bare perusal of the impugned orders, it is evident that there is no illegality or perversity in the impugned orders.

19. Further, the alleged question of law proposed in para VI (A to I) of the second appeal falls within the realms of questions of fact and does not fall within the purview of the substantial questions of law.

20. That in the decision reported in [AIR 2020 SC (4321)], Nazir Mohamed vs J.Kamala And Ors. the Hon'ble Apex Court held that the condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujjar [(1993) (3) SCC 722, the Hon'ble Apex Court held that after the amendment, a second appeal can be filed only if a substantial question of law is involved in the case and it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. As such, a second appeal cannot be decided on equitable grounds. Rather, conditions mentioned in Section 100 CPC must be complied with to admit and maintain a second appeal.

21. In view of the discussions made herein above, no question of law, much less any substantial question of law, is involved in the second appeal requiring interference by this court in the exercise of its jurisdiction under section 100 of the Code of Civil Procedure.

22. Therefore, the present second appeal is dismissed with no order as to costs. [2025:RJ-JP:22091] (7 of 7) [CSA-515/2017]

23. Any other pending application(s), if any, stands disposed of. SOURAV /3 (MANEESH SHARMA),J