S. N. Saxena, J. - (1.) THIS appeal is directed against the judgment and decree passed by Sri V. N. Singh, Addl. Civil Judge, Allahabad, Civil Appeal No. 272 of 1978 arising out of regular Suit No. 457 of 1973. The decision of the lower appellate Court is dated 29-3-1979.
(2.) PLAINTIFF Kanhaiya Lal, had instituted the aforesaid regular suit for partition of his 1 /4th share in house no. 255 situate in Old Katra, Allahabad and for possession upon the share allotted to him as a result of the partition decree. The defendants are co-owners of the disputed property. The plaintiff has given a pedigree in para 1 of his plaint which is as follows :- JUDGEMENT_414_AWC1_1994Image1.jpg According to the plaintiff, a family settlement had taken place amongst Chhedi Lal, his sons and other members of his family which was reduced to writing also on 21-4-1934. It was got registered with Sub-Registrar, Allahabad on 26-4-1934. Mata Badal and his sons as a result thereof became the owners of the house property detailed in the map attached with the plaint and the plaintiff had got 1/4th share therein. During the life time of Mata Badal, there had been a mutual partition of the disputed house owned by him and his three sons and the rest of the articles had remained joint. Originally he had pleaded that his share was 2/7th in the house and l/7th in the rest of the property but he got the 11th para of the plaint amended and pleaded that he claimed only l/4th share in the property in dispute. He requested the defendants a number of times for partition and possession of his share but in vain, hence the suit. The defendants, besides other pleas, pleaded that partition had already taken place of the disputed property and the plaintiff was in exclusive possession of his share. The bouse property belonging to Mata Badal and his sons was numbered as 255. They further pleaded that plaintiff Kanhaiya Lal and defendant no. 1 Madan Gopal had completely separated their shares in the house and the suit in view of the partition, which had already taken place, was not maintainable. Mata Badal allegedly had executed a will on 24-11-70 according to which he had given his entire l/4th share to defendants no. 3 to 6 who were his daughters. The plaintiff therefore, could not get 2/7th and l/4th share, the claim for which, as mentioned above however, had been given up by the plaintiff. The learned Munsif, after considering the evidence adduced by the parties, arrived at the conclusion that the partition of the disputed property had already taken place, and therefore, it could not be ordered again. He, therefore, dismissed the suit. Feeling aggrieved, the plaintiff preferred Civil Appeal No. 272 of 1978 which, as mentioned above, was dismissed by the learned Civil Judge. He agreed with the finding given by the learned Munsif that partition had already taken place and, therefore, the suit for partition again was not maintainable. The plaintiff, thereafter, preferred this Second Appeal. It was vehemently argued for the appellant that the Courts below had not correctly read the evidence on the record and had returned a wrong finding that mutual partition had already taken place between the co-owners of the property in dispute and therefore, this appeal was liable to be allowed.
(3.) THE substantial question of law which finds place at page 3 of the memorandum of the second appeal reads as follows :- "Whether mere legal partition in a joint Hindu family i.e. disruption of joint status at an earlier stags, can be proved by a party, to bar division by meets and bounds." Learned counsel for the respondents argued that as a matter of fact the substantial question of law framed by the learned counsel for the appellant was not at all a question of law; that both the courts below had returned concurrent findings of fact that partition of the house already had taken place; that there was no legal bar against defendants due to which they were not entitled to adduce evidence to prove the earlier partition between the co-owners of the house; that they also were entitled to prove disruption of the joint status of the joint family at an earlier stage and that the second appeal having no substantial question, of law involved in it was liable to be dismissed. After carefully considering the submissions put forward on behalf of the learned counsel for the parties, I am of opinion that the appeal, in view of the concurrent findings of fact and absence of a substantial question of law, was liable to be dismissed. ;