ALIYOT VIJAYAKUMAR Vs. ALIYOT DINESH BABU

JUDGEMENT

(1.) Heard the second appeal on the question of maintainability. The learned counsel for respondents 29, 30 and 31 vehemently challenges the maintainability of the appeal preferred by the 3 rd respondent in the suit for the first time as a second appeal.

(2.) According to the learned counsel for the appellant, the right of the mother over the property was not adjudicated in the suit and therefore, the appellant is entitled to moot that question through a second appeal. The argument is that in a suit for partition, an aggrieved party who has not challenged the judgment and decree can maintain a second appeal.

(3.) In this context the learned counsel for the appellant has relied on the decision of the Apex Court in Hardevinder Singh v. Paramjit Singh and others, 2013 9 SCC 261. In the case relating to the decision in Hardevinder Singh, a party who was benefited by a judgment and decree, was found entitled to challenge the appellate decree when the judgment and decree in his favour was upset by the appellate court. The facts of the case in the said decision and the law propounded by the Apex Court therein have no application to the facts and circumstances of the present case.