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2023 DIGILAW 1154 (RAJ)

Lallu Lal v. Late Shri Ramsahai

2023-05-23

NARENDRA SINGH DHADDHA

body2023
ORDER : 1. Matter comes up on an application (I.A. No. 01/2021) filed by the applicant-respondent No. 1/5 Smt. Girraj Devi (for short 'the applicant') under section 151 CPC seeking appropriate directions in the light of the judgment dated 11.07.2020 passed by the Hon'ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma & Ors. reported in 2020 (9) SCC 1 . 2. Learned counsel for the applicant submits that the instant civil first appeal has been preferred by the appellants-defendants against the preliminary judgment and decree dated 24.10.2016 passed by the Additional District Judge No. 10, Jaipur Metropolitan, City, Jaipur in Civil Suit No. 50/2016 titled as (Prakash Chand) Smt. Shimla Devi & Ors. v. (Ram Sahay) Lallu Lal & Ors. 3. Learned counsel for the applicant submits that the plaintiff Prakash Chand and Ashok Kumar sons of Hari Narayan sought partition of the properties as mentioned in Para Nos.3, 4 and 5 of the plaint alleging that the plaintiffs inherited all properties from common ancestor namely Mahadev, who was grandfather of the plaintiffs. Learned counsel for the applicant also submits that in the written statement filed by late Ram Sahay (father of the applicant), Hari Narayan, Lallulal, Nandkishore and Brijesh emphatically mentioned before the Court below that late Mahadev, grandfather of plaintiffs owned only one property, which is known as 'Tahkhana' and other properties mentioned in the plaint are self acquired properties of applicant's father Ram Sahay. On that basis, the trial court dismissed the plaintiffs' suit vide judgment and decree dated 23.09.1981. 4. Learned counsel for the applicant also submits that the plaintiffs preferred regular first appeal bearing No. 12/1982 before this Court challenging the judgment and decree dated 23.09.1981. This Court vide judgment and decree dated 01.07.1991 allowed the regular first appeal and set-aside the judgment and decree dated 23.09.1981 holding that the plaintiffs Prakash Chand and Ashok Kumar are entitled for 1/8th share and 1/16 share respectively in the property mentioned in Para Nos.3,4 and 5 of the plaint. Being aggrieved by the judgment and decree dated 01.07.1991, Lallu Lal filed D.B. Special Appeal No. 29/1991, which was dismissed vide judgment dated 18.04.2014. Thereafter, SLP was filed before the Hon'ble Apex Court, which was also dismissed vide judgment dated 09.02.2015. 5. Being aggrieved by the judgment and decree dated 01.07.1991, Lallu Lal filed D.B. Special Appeal No. 29/1991, which was dismissed vide judgment dated 18.04.2014. Thereafter, SLP was filed before the Hon'ble Apex Court, which was also dismissed vide judgment dated 09.02.2015. 5. Learned counsel for the applicant also submits that the learned Court below after hearing both the parties passed the preliminary decree dated 24.10.2016 and held that Late Ram Sahay, Late Hari Narayan, Lallu Lal and Nand Kishore each is having 1/4th share in the property mentioned in Para Nos.3,4 and 5 of the plaint. In the instant matter, final decree has not been drawn yet. During the pendency of the instant first appeal, Hon'ble Apex Court in the case of Vineeta Sharma (Supra) crystallized the rights of the daughter in the coparcenary property under Section 6 (as substituted by Hindu Succession (Amendment) Act, 2005) of Hindu Succession Act, 1956. So, the present appeal may be remanded back to the Court below to pass an order in the light of the judgment passed by the Hon'ble Apex Court in the case of Vineeta Sharma (Supra). 6. Learned counsel for the non-applicant have opposed the application. 7. Learned counsel for the respondent No. 5 stated that no preliminary decree was passed by the Court below on 24.10.2016. Preliminary decree was passed by this Court vide judgment dated 01.07.1991. The order dated 24.10.2016 is only substitution of the share of deceased-Ramsahay & Harinarayan, therefore the appeal is not maintainable. 8. Learned counsel for the respondent No. 5 also submits that the present application has been filed by stating wrong facts and applicant wants to delay the appeal. So, the present application has been filed with mala-fide intention. Learned counsel for the respondent No. 5 further submits that the present first appeal has been filed against the order dated 24.10.2016 in the execution petition. So, the scope cannot be enlarged by entertaining this application. So, application filed by the applicant may be dismissed. 9. I have considered the arguments advanced by learned counsel for the parties. 10. It is an admitted position that the present appeal is not filed against the preliminary decree. Preliminary decree was passed by this Court vide judgment dated 01.07.1991. The present appeal is filed against the order dated 24.10.2016 in the execution petition. So, in my considered opinion, scope of proceedings cannot be enlarged at this stage. 10. It is an admitted position that the present appeal is not filed against the preliminary decree. Preliminary decree was passed by this Court vide judgment dated 01.07.1991. The present appeal is filed against the order dated 24.10.2016 in the execution petition. So, in my considered opinion, scope of proceedings cannot be enlarged at this stage. Hence, application (I.A. No. 01/2021) filed by the applicant-respondent No. 1/5 being devoid of merit, is liable to be dismissed, which stands dismissed accordingly.