Soniya Bai And Ors vs Pradeep Kumar And Ors

This Review Petition has been preferred by the defendants under Order 47 Rule 1 read with Section 114 of CPC, questioning the legality and propriety of the order dated 05.07.2017 passed by this Court in S.A. No.617/2016 on the basis of the observation made by the Supreme Court vide order dated 05.01.2018 in Special Leave Petition (Civil) Diary No.38076/2017 which reads as under:-

"Delay condoned.

Learned counsel for the petitioners states that he is not challenging the findings that the respondent, even when he is illegitimate child, has a right of inheritance in the property. He further submits that he could inherit the property of father only and not the other ancestral property. From the impugned judgment we do not find that this aspect has been dealt with. It is not known as to whether such a point was even raised by the petitioners or not. In these circumstances, it would be appropriate for the petitioners to approach the High Court in the first instance and file an application for review.

With the aforesaid observations, the special leave petition is disposed of.

Pending application(s), if any, stands disposed of accordingly."

The facts of the case are that the plaintiff (Pradeep Kumar) instituted a suit claiming declaration of title, injunction, partition and for the separate possession claiming one-third share with regard to the property in question held by his father Pati Ram, as he is a son born from his third wife Shanti Bai. The suit was contested mainly on the ground that he (Pradeep Kumar) is not the son of said Pati Ram, therefore, he is not entitled to claim any share.

Based upon the aforesaid pleadings, Issue No.1 was framed by the trial Court, as to, whether plaintiff (Pradeep Kumar) was born out of the wed-lock of said Pati Ram and Shanti Bai or not and, the Issue No.2 was framed, as to, whether he was entitled to claim his share with regard to the property of said Pati Ram?

While entertaining the Issue No.1, it was held by the trial Court that plaintiff (Pradeep Kumar) is the son born out of the wed-lock of Pati Ram and Shanti Bai and, while entertaining the Issue No.2, it was observed that he was entitled to the property held by said Pati Ram by excluding the suit house, as it was found to be the ancestral property of him.

The finding of the trial Court has been affirmed further by the appellate Court in an appeal preferred by the defendants.

It is, thus, evident from the aforesaid finding of the Courts below that plaintiff was held to be entitled to claim share only with regard to the property held by said Pati Ram and his claim with regard to the suit house, the ancestral property, was refused.

Consequently, I do not find any error apparent on the face of record so as to call for any interference in this review jurisdiction. The review petition is accordingly dismissed. No order as to costs.