TMI Blog2014 (12) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... led the suit for partition in respect of property bearing No.C-135-136, New Multan Nagar, Delhi-110056 (hereinafter referred to as the suit property ). The plaintiffs and defendant namely Ajay Kumar are real brothers. It is the case of the plaintiffs that the suit property is the joint property of the plaintiffs and the defendant. 2. The case of the defendant is that the suit property is his self-acquired property and has never been the joint property. The plaintiffs have no right, title, interest or claim in the suit property. The suit is wholly on false, misleading and baseless. The defendant is the sole owner of the suit property. The plaintiffs have not produced any evidence to establish their claim of joint ownership of the suit property. The documents filed by the plaintiffs along with the plaint which are Ikrarnamas dated 10th January, 1981 and 21st August, 1986 are concocted have been fabricated for the purposes of present case. The defendant has never executed any document(s) acknowledging any right, title or interest of the plaintiffs. The suit property had been purchased by the defendant vide sale deed dated 7th August, 1980. The construction was commenced and comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs evidence. However, no affidavit was filed. By order dated 30th January, 2014, one more opportunity was granted to the plaintiffs to file the chief affidavits by 21st April, 2014 and the matter was listed for plaintiffs evidence on 21st May, 2014. But no evidence was filed by the plaintiffs. When the matter was listed on 21st May, 2014 one more opportunity was granted to file the chief affidavits by 31st July, 2014 and the matter was adjourned to 20th November, 2014, subject to cost of ₹ 10,000/-. When the matter was taken up by the Joint Registrar, it was noticed that the plaintiffs failed to file the affidavit. Even the cost was not paid. The matter was put up before Court and the same is listed before Court. 6. Learned counsel for the defendant has made the statement at the bar that the affidavit is still not filed by the plaintiffs although copy of the affidavit has been received. Learned counsel for the plaintiffs on the other hand states that the affidavit has been sent from the Germany. The same is likely to be received shortly. Learned counsel for the defendant has strongly opposed the request of the learned counsel for the plaintiffs and argued that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed civil appeal in the court of Additional District Judge, Chandigarh. In the appeal, the Plaintiff made an application on December 21, 2007 for impalement of the Appellant and its partners as Respondent Nos. 2 to 5. The application for impalement was granted and the Appellant and Respondent Nos. 3 to 5 herein were added as parties. The Additional District Judge, Chandigarh after hearing the parties, dismissed the civil appeal on March 20, 2008. 10. Being not satisfied with the concurrent judgment and decree of the two courts below, the Plaintiff preferred second appeal before the High Court which, as noticed above, has been allowed by the Single Judge on September 20, 2010 and the suit has been remanded to the trial court for fresh decision in accordance with law. 11. The judgment of the High Court is gravely flawed and cannot be sustained for more than one reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement of Section 100 Code of Civil Procedure and interfered with the concurrent judgment and decree of the courts below without formulating any substantial question of law. The formulation of substantial q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental legal position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position. 13. Unfortunately, the High Court failed to keep in view the constraints of second appeal and overlooked the requirement of the second appellate jurisdiction as provided in Section 100 Code of Civil Procedure and that vitiates its decision. 14. Second, and equally important, the High Court upset the concurrent judgment and decree of the two courts on misplaced sympathy and non - existent justification. The High Court observed that the stakes in the suit being very high, the Plaintiff should not be non-suited on the basis of No. evidence. But, who is to be blamed for this lapse? It is the Plaintiff alone. As a matter of fact, the trial court had given more than sufficient opportunity to the Plaintiff to produce evidence in support of its case. As noticed above, after the issues were framed on July 19, 2006, on three occasions, the trial court fixed the matter for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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