JUDGMENT B.K. Sharma, J. 1. Heard Mr. S.M. Chakraborty, learned Counsel for the Appellant as well as Mr. D.K. Biswas, learned Counsel representing the Plaintiff-Respondent No. 1. The Appellant was the pro forma Defendant No. 3 in the suit in question. 2. Briefly stated the facts leading to filling of the instant second appeal against the concurrent findings of fact of the trial court and the first appellate court are as follows. 3. One Gokul Chand Sinha died in tested leaving behind the Appellant and the Respondents as his legal heirs and successors. The property left by him was to be divided among his legal heirs as per the provisions of the Hindu Succession Act. 4. The Plaintiff-Respondent filed title Suit (Partition) No. 8/2005 praying for partition of the property left by his father late Gakul Chand Sinha. In paragraph 2 of the plaint, it was categorically stated that the pro forma Defendant Nos. 3, 4 and 5 who are the daughters of late Gakul Chand Sinha were satisfied with the properties given to them and as such they became disclaimers in respect of their share of property left by their father, late Gakul Chand Sinha forming subject matter of the suit. With such categorical statement, it was further averred in the plaint that consequently it was the Plaintiff and the principal Defendants who alone were interested in the suit land for partition. It was further stated in the plaint that because of the disclaimers, the said 3(three) daughters of late Gakul Chand Sinha had been made party Defendants and pro forma Defendant Nos. 3, 4 and 5 and that if they would contest the claim of the Plaintiff, they would be treated as principal Defendants in the suit. 5. In spite of service of notice, the pro forma Defendants including the Appellant did not contest the suit filed by the Plaintiff-Respondent and consequently the learned trial court by its judgment and order dated 22.12.2006 allowed the suit by granting the partition. The operative part of the judgment and decree is reproduced below: - "ORDER 12. In view of findings and decision arrived in the forgoing issues I hold that the Plaintiff is entitled to get one-third share of the suit land left by late Gakul Chand Sinha. The operative part of the judgment and decree is reproduced below: - "ORDER 12. In view of findings and decision arrived in the forgoing issues I hold that the Plaintiff is entitled to get one-third share of the suit land left by late Gakul Chand Sinha. Defendants are directed to make partition the suit property amicably as per preliminary decree within 6(six) months and if it is not settled by this time any of the parties are at liberty to approach this Court to get final decree. No cost. Accordingly prepare preliminary decree. 13. Announced. 6. Towards passing the aforesaid judgment and decree dated 22.12.2006, the learned trial court had formulated the following issues: - 1. Whether there is any cause of action for this suit. 2. Whether the suit is maintainable in its present form and whether there was any partition amongst the parties earlier. 3. Whether the suit is barred by non-joinder of parties. 4. Whether the Plaintiff is entitled to get any share in the suit property, and, if so, what is the quantum of his share. 5. Whether the Plaintiff is entitled to get the decree as prayed for. 6. To what other relief/reliefs the parties are entitled? 7. In the trial proceeding, the Plaintiff-Respondent examined four witnesses as PW1, PW2, PW3 and PW4. The Plaintiff-Respondent also exhibited 7(seven) documents as Exts. 1 to 7. The Defendant side also adduced evidence of DW1, DW2, DW3 and DW4. However, no documentary evidence was adduced by the Defendant. 8. As regards the claim of disclaimer, specifically pleaded in paragraph 2 of the plaint, the learned trial court while answering the issue No. 4, i.e., whether Plaintiff is entitled to get any share in the suit, and, if so, what is the quantum of his share, observed, thus: - From the pleadings and evidence of both parties I find that Late Gakul Chand Sinha had/have two sons namely Late Lal Mohan Sinha and Shri Tarun Kumar Sinha. I also find that Defendant No. 1 Smt. Tulsi rani Sinha is the widow of Late Gakul Chand Sinha. Late Gakul Chand Sinha has also 3 daughters who are the Defendant Nos. 3, 4 and 5. These 3 daughters are made as pro forma Defendants and summons were served upon them but they did not contest the suit. I also find that Defendant No. 1 Smt. Tulsi rani Sinha is the widow of Late Gakul Chand Sinha. Late Gakul Chand Sinha has also 3 daughters who are the Defendant Nos. 3, 4 and 5. These 3 daughters are made as pro forma Defendants and summons were served upon them but they did not contest the suit. Plaintiff as well as Defendants claimed that pro forma Defendants are disclaimers and they are not interested with the properties. If it is so then the properties left by Late Gakul Chand Sinha will be devolved into three parts. Plaintiff and Defendant No. 1 will get one-third share each and the rest one-third will be distributed amongst the Defendant Nos. 2(a) to 2(e) as they are the legal heirs of Late Lal Mohan Sinha. This issue is answered accordingly. 9. Being aggrieved by the aforesaid judgment and decree, one of the principal Defendants namely Shri Swapan Sinha filed title Appeal No. 09/2007. The first appellate court by its impugned judgment and order dated 17.12.2007 having dismissed the appeal affirming the judgment and decree passed by the trial court, now the pro forma Defendant No. 3 has preferred this second appeal. 10. As noted above, the pro forma Defendant No. 3, i.e., the Appellant against whom and two others, disclaimer was specifically pleaded in the plaint, did not respond to the trial proceeding in spite of service of notice. She also did not make any challenge to the judgment and decree passed by the trial court. That apart, although she was made party Respondent in the appeal No. 9/2007, she did not respond to the said appeal proceeding also. This aspect of the matter has been specifically dealt with by the learned appellate court in its judgment and order dated 17.12.2007. While deciding the question of respective share of the legal heirs, the first appellate court has held that the pro forma Respondent Nos. 7, 8 and 9 who are the pro forma Respondent Nos. 3, 4 and 5 which include the present Appellant, would not be entitled to any share in the suit property as they had disclaimed the share of their ancestral property left by their father Late Gakul Chand Sinha. 11. 7, 8 and 9 who are the pro forma Respondent Nos. 3, 4 and 5 which include the present Appellant, would not be entitled to any share in the suit property as they had disclaimed the share of their ancestral property left by their father Late Gakul Chand Sinha. 11. The fact that the pro forma Defendant No. 3/Appellant including the other pro forma Defendants did not respond to the trial as well as the first appeal proceeding, has been specifically mentioned in the impugned appellate judgment and order. The Appellant, although, was party in the suit as well as in the appeal, did not turn up before both the courts below, so as to claim any share of the property in question rather admitted the assertion of the Plaintiff-Respondent in the plaint that the 3(three) daughters including the Appellant disclaimed the share of their ancestral property in favour of the remaining co-sharers. 12. Now the Appellant who did not respond to the trial as well as the appeal proceedings, has filed this second appeal claiming to be based on the following substantial questions of law: - 1. Whether the right of a legal heir can be negated in the ancestral property without any proof of the disclaimer by such legal heir? 2. Whether the learned civil court while passing a partition decree in respect of the property of a Hindu is under obligation to determine the share of all the legal heirs of the deceased persons whose property has been sought to be partitioned? 3. Whether the declaration of share of one group of legal heirs ignoring the share of another group of same status is valid and enforceable in the eye of law? 13. Mr. S.M. Chakraborty, learned Counsel for the Appellant placing reliance on the decision of the Apex Court Mohammad Laiquiddin and Anr. v. Kamala Devi Misra (dead), (2010) 2 SCC 407 by L Rs and Ors. submits that irrespective of the fact that the Appellant did not respond to the trial and first appeal proceeding, she is entitled to raise the question of law in the second appeal. In this connection, he has referred to paragraph 18 and 19 of the said Judgment, which are quoted below: - 18. submits that irrespective of the fact that the Appellant did not respond to the trial and first appeal proceeding, she is entitled to raise the question of law in the second appeal. In this connection, he has referred to paragraph 18 and 19 of the said Judgment, which are quoted below: - 18. That apart, when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below, it is difficult to hold that such question of law cannot be permitted for the first time before the High Court. 19. Therefore, we do not see how the Appellants are aggrieved by this finding of the High Court even assuming the High Court had formulated a new question of law, which was not raised before the courts below. 14. Mr. D.K. Biswas, learned Counsel representing the Plaintiff-Respondent on the other hand submits that since specific pleadings in the plaint made by the Plaintiff regarding the disclaimer of the pro forma Respondent Nos. 3, 4 and 5 which included the present Appellant was not denied by the said Defendants, the said question of fact cannot be allowed to be re-opened in the second appeal in the garb of the aforementioned questions of law. He further submits that since the Appellant not only did not respond to the trial proceeding but also did not challenge the judgment and decree passed by the learned trial court and also did not respond to the first appeal proceeding, she is now precluded from disputing a factual aspect of the matter in the second appeal. 15. I have considered the rival submissions made by the learned Counsel for the parties as well as the entire materials on record. The substantial questions of law as has been projected by the Appellant in this appeal will have be understood in the background of the facts which have been stated above. In the suit there was specific pleadings that there was disclaimer on the part of the pro forma Defendants including the Appellant to which there was no rebuttal in spite of service of notice. Not only that, when the judgment and decree was passed by the trial court, the Appellant did not make any grievance against the same and allowed the things to happen. Not only that, when the judgment and decree was passed by the trial court, the Appellant did not make any grievance against the same and allowed the things to happen. In the appeal proceeding also, she did not show any response in spite of service of notice. 16. As discussed above, this aspect of the matter has been categorically mentioned by the first appellate court in its impugned judgment and order. The Appellant having not responded to the trial court proceeding as well as the first appeal proceeding, cannot now be allowed to raise a question of fact in the second appeal proceeding. That apart, she also did not make any challenge to the judgment and decree passed by the learned trial court. 17. The substantial questions of law quoted above cannot be adjudicated de hors the factual aspect of the matter discussed above. In the present appeal, the contention of the Appellant in paragraph 5 is that she being a simple minded housewife could not understand the implications and consequences of her non-appearance in the courts below. Such a stand is not at all tenable in law, more so when the same very lady has now filed this appeal. 18. The Appellant had knowledge of the judgment and decree passed by the trial court which is question of fact. Similarly, the fact that she also did not respond to both the proceedings, i.e., the trial proceedings as well as first appellate proceedings is also a question of fact. As has been held by the Apex Court in Roop Singh v. Ram Singh, (2000) 3 SCC 708 the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure is confined to appeals involving substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its said jurisdiction. The specific pleading in the plaint having not been rebutted by the Appellant both at the trial stage as well as first appellate stage and she also having not challenged the judgment and decree passed by the trial court, the particular finding of fact arrived at by both the courts below, in my considered opinion, cannot be interfered with in the pretext of the aforesaid substantial questions of law. 19. The decision on which Mr. 19. The decision on which Mr. Chakraborty, learned Counsel for the Appellant has placed reliance, i.e., Mohammad Laiquiddin (supra) is on the general principle that when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below, such question of law can be permitted to be raised for the first time in the higher court. There cannot be any dispute in respect of the said proposition but in the instant case the pro forma Defendant No. 3/Appellant did not respond to both the proceedings below and so also did not raise any grievance against the judgment and decree passed by the trial court. In such a situation, it cannot be said that she is entitled to raise the purported substantial question of law by filling the instant second appeal. 20. For all the aforesaid reasons, I do not find any merit in this appeal and accordingly it is dismissed. Appeal dismissed