- (1.) The instant second appeal has been preferred against the judgment and decree dated 6.11.1987 passed by the II-Additional Civil Judge, Faizabad, allowing Civil Appeal No.32 of 1987 (Daya Ram Vs. Babu Ram). The First Appellate Court has allowed the appeal preferred against the judgment and decree dated 13.1.1987 passed by Munsif Haveli, Faizabad, bearing Civil Suit No.219 of 1985. The trial court decreed the suit in part.
(2.) Learned counsel for the appellants raised the substantial questions of law to be decided by this Court. Substantial questions of law raised by the learned counsel for the appellants are as under :- (a) Whether there can be a re-partition of the joint property at the instance of a separated member of a Hindu co-parcenery ? (b) Whether the 'Iqrarnama' set up by a party could be read in evidence even though the same was not registered ? (c) Whether a separated son can claim a share in the share of the father who was living with his other son jointly since long before his death ? (d) Whether in a partition suit all the co-sharers should be impleaded ? In the present case, the mother of the parties was alive but was not impleaded as party, though definitely she had share. (e) Whether there can be a fresh division of the portions of the parties in a dwelling house which was partitioned long before ? (f) Whether the suit for the portion of a grove will be in civil court ?
(3.) Learned counsel for the appellants argued that all the questions are very material and these are substantial questions of law and the order passed by learned First Appellate Court suffers from gross illegality and infirmity. The appellant was defendant in original suit no.219 of 1985, which was decreed in part and partly it was dismissed. The trial court has partly decreed the suit regarding land which was allocated in defendant share, which has been demarcated in the Commissioner's map paper no.11C/2, which is in southern side of the appellant-defendant grove and the appellant was granted half of the share of the portion. The trial court has specifically ordered that in southern portion of the grove, the respondent/plaintiff has no share and the suit was dismissed regarding that share. Aggrieved by the decree and order, he preferred the civil appeal before the II-Additional Civil Judge, Faizabad, and the II-Additional Civil Judge, Faizabad vide order dated 6.11.1987 allowed the appeal and set aside the order dated 13.1.1987 passed by the lower court and he passed the order that respondent/plaintiff shall be allocated half of the share in the disputed property and final decree be prepared accordingly.;