Jasoda Bai and Others vs Haribhallabha and Others

Hon''ble Ms Justice Bela M. Trivedi

Heard learned counsel for the parties.

The present appeal has been filed by the appellants who were not parties to the suit after obtaining necessary permission from the court as per the order dated 18.7.2011.

Having regard to the submissions made by learned counsel for the parties and to the documents on record, it transpires that the suit was filed by the present respondents No. 1 to 6 (original-plaintiffs) against respondent No. 7 (original-defendant) seeking partition of the suit property. Present respondents No. 1 to 5 and respondent No. 7 are sons of respondent No. 6 Heeralal and present appellants are the daughters of said respondent No. 6 Heeralal. It was contended by the plaintiffs in the suit that the property in question was a joint family property and therefore the same deserved to be partitioned. The trial court after considering the evidence on record held that the suit property was self acquired property of respondent No. 7 (defendant) and therefore dismissed the suit. None of the plaintiffs i.e present respondents No. 1 to 6 have challenged any of the findings recorded by the trial court by filing the appeal. The present appeal has been filed by the appellants who were not the plaintiffs in the suit on the ground that they were daughters of respondent No. 6 Heeralal and had share in th suit property. According to the learned counsel for the appellants, the said finding that the property in question was the self acquired property of respondent No. 7 (defendant), will not come in the way of appellants as the suit property was a joint family property of Heeralal and self acquired property of respondent No. 7-Bhanwarlal.

It is pertinent to note that none of the respondents No. 1 to 6 who were the original plaintiffs and who had filed the suit for partition in respect of the suit property including the respodnent No. 6 who is the father has challegned the said decree of the trial court. If it was joint family property of Heeralal and his sons respodnent Nos 1 to 5 would have certainly challenged the said decree. However, the same has been accepted by the respondents No. 1 to 6. of course, the present appellants No. 1 to 4 who were the daughters of said Heeralal were made party in the said suit, however, if they claimed any share in the property in question on the ground of their having share in the said property they could have filed separate suit. Since the respodnents No. 1 to 6, who could be said to be the aggrieved party have not preferred any appeal against the judgment and decree in question, the present appeal filed by the appellants who were not party to the suit could not be entertained.

Learned counsel for the appellants has relied upon the decision of Hon''ble Supreme Court in the case of Arundhati @ Harshana Vs. Iranna @ Veerendra, to submit that the appeal at the admission stage without issuing notice to the respondents and without looking into the evidence could not be dismissed. In the instant case, the notices were already issued to the respodnents and Ms Rashmi Khandelwal has filed her appearance for contesting respondent No. 7, respondent Nos 1 to 6 have already been served and Mr. D.K. Garg has put his appearance. It is also significant to note that as stated earlier, present appellants were not party in the suit, this court considering the impunged judgment and decree and the fact that the respondents No. 1 to 6 have not filed any appeal against the judgment and decree and having found that the appellants could have filed separate suit claiming their share if any in the sut property, the present appeal deserves to be dismissed and is accordingly dismsised.