KUNJAN Vs. PHOOLA AND OTHERS

JUDGEMENT

(1.) This miscellaneous appeal has been filed under the provisions of Order 43, Rule 1 (U) of Code of Civil Procedure against the judgment and decree dated 31.08.2015 passed by the Court of First Additional District Judge to the Additional District Judge, Datia in Civil Appeal No.19A/2012 (Foola Vs. Kunjan and Ors.). Vide impugned judgment and decree dated 31.08.2015 the First Appellate Court has made a whole sale remand of the case for retrial before the trial Court on the ground that the trial Court has not appreciated the evidence lead by the defendant No.1 claiming share in the suit property on twin grounds namely having one third share in her capacity as a legal heir and also on the basis of a will in favour of her husband Balveer as was executed by father of Balveer being not appreciated by the trial Court properly.

(2.) The brief facts which are necessary for deciding this miscellaneous appeal, Kunjan-plaintiff had filed a suit for declaration that her title and possession over the suit land be protected. The trial Court had framed 7 issues and had held that the suit land was ancestral property of the husband of the plaintiff namely Balveer. It is also held that after death of Balveer, plaintiff being wife of Balveer is entitled to the share of the property which had come in account of Balveer. It is also held that defendant Foola had approached the Court on the basis of contrary pleadings of her claim being based on ancestral property and also on the basis of some forged will, not found to be proved and it was held that the defendant Foola was not having any right and entitlement over the property. Then, it was further held that the suit has not been filed for usurping the share of defendant No.1 i.e. daughter of Banmali. It has also come on record that plaintiff had not produced any forged will of deceased Banmali Ghosi.

(3.) In view of the aforesaid findings the trial Court had decreed the suit as was filed by the plaintiff and had refused to entertain the counter claim filed by the defendant No.1 on the ground that the counter claim was filed against the co-defendants and not against the plaintiff therefore, such counter claim was not entertain able against the co-defendants as has been held by the Supreme Court in case of Rohit Singh and Ors. Vs. State of Bihar (now State of Jharkhand) reported in AIR 2007 SC 10 so also in the case of Narendra Kumar Vs. Manju Agrawal and Ors. reported in (2005) 2 MPHT 276 wherein it has been held that defendant can file counter claim against the plaintiff only and his counter claim against the co-defendants is not maintainable.