- (1.) S. K. Singh, J. This Second Appeal is by the plaintiffs against the judgment and decree passed by the Munsif, Bansi dated 12-11-1969 which was confirmed in appeal by the first appellate Court by its judgment dated 6-5- 1972.
(2.) PLAINTIFFS-appellants filed Original Suit No. 66 of 1967 against the defendants claiming 2/3rd share in the suit property. A pedigree was given in the plaint about which there happens to be no dispute, which for the convenience is being reproduced : The claim of plaintiffs was that Sarju Prasad had three sons Gur Prasad, Har Prasad and Shyam Prasad. It was claimed that there had been a partition between Gur Prasad, Har Prasad and Ram Sewak, the son of Shyam Prasad. Ram Sewak died in the state of separation. On the death of Ram Sewak name of Mst. Jagwanta, his widow was mutated as there is khewat entry in this respect It was claimed that Smt. Jagwanta gifted the entire property inherited by her in favour of the plaintiffs by means of the gift deeds dated 2-2-1963/30-4-1963 and thus plaintiffs became entitled of 2/3rd share in the suit property. On account of some dispute in respect to the rights, the plaintiffs filed present suit for partition. Defendants 1 and 2 contested the suit and they filed written statement while the suit proceeded ex- parte against the defendant-respondent No. 3. In the written statement filed by the defendant 1 and 2 they admitted the pedigree but they denied about any partition between Gur Prasad, Har Prasad and Ram Sewak. It was stated that Ram Sewak died when the family was joint and it was undivided Hindu family. It was admitted that Shyama Prasad pre-deceased Sarju Prasad. Thus it was claimed by the defendant-respondent No. 1 and 2 that after the death of Ram Sewak which according to them took place on 3-9-1964, remaining coparceners jointly took the property and thus plaintiffs and the defendants have half and half share each. It was further stated that Mst. Jagwanta had no right to gift out the property and, therefore, they challenged the claim of the plaintiffs, as claimed on the basis of the gift deed.
(3.) ON the aforesaid pleadings suit proceeded and following issues were framed: "1. Whether Ram Sewak died in a state of separation in 1932-33 as alleged and did her widow inherit by share in the property? 2. What is the share of the plaintiffs in the suit property ? 3. Whether the gift deeds executed by Smt. Jagwanta in favour of the plaintiffs is invalid for the reasons given in the W S of the defendants 1 and 2 ? If so can the defendants assail the gift deeds now ? 4. Whether shikmi plot No. 7 and plot No. 183 are bhumidhari land and are not liable to be partitioned in the suit. ? 5. Whether the suit is within time ? Relief?" 6. After framing of the issues matter proceeded. Some amendment in the plaint was allowed Plaintiffs filed several documents consisting of original gift deed, khewat etc. On 10-9-1969 on behalf of the plaintiffs one document was filed which was admitted and defendants were allowed time to file documents in rebuttal as prayed by them and 12-11-1969 was fixed. It appears that on 15-10-1969 itself although it was not the date fixed certain documents in rebuttal were filed by the defendants. Out of three documents one document filed by defendants was not admitted and they were required to prove the same by summoning the original record at the time of hearing. On 25-10-1969 application was filed by the defendants for summoning of the record. It is thereafter on 12-11-1969 which was originally the date fixed plaintiffs moved an application for adjournment of the matter. It was stated in the application dated 12-11-1969 that defendants have filed some documents on 15-10-1969 of which plaintiffs had no information from before Defendants have never moved any application or they have never stated about filing of those documents and therefore, for filing the documents in rebuttal the inspection of records is required which the plaintiffs could not do as plaintiff No. 1 being in Government service in Moradabad could not get leave. It was further stated that the witness Dudhai who was to be examined on that date fell ill by chance and therefore, prayer was made that one opportunity for filing the documents in rebuttal and for oral evidence may be given. Aforesaid application was rejected by the trial Court and on the same day arguments of defendant counsel was heard and the suit was finally decided granting half share to the parties. Against the judgment and decree passed by the trial Court appeal was filed by the plaintiffs. Besides other grounds taken in the appeal specific ground was taken that plaintiffs have been denied a reasonable opportunity of evidence and hearing which has resulted in failure of justice and therefore, prayer was made that matter may be remanded and after affording an opportunity of evidence to the plaintiffs the trial Court may be directed to decide the same. Lower appellate Court after hearing the arguments from both the sides did not agree with the plaintiffs and thus dismissed the appeal.;