SITARAM YADAV Vs. SANT LAL YADAV

JUDGEMENT

(1.) THE plaintiffs respondents appellants had filed the aforesaid partition suit claiming half share in the property alleging that Bhikhaniya Devi was the daughter of Shiv Prasad Yadav who died in the year 1962 and, therefore, his half share in the property devolved on Bhikhaniya Devi, the original plaintiff.

(2.) THE defendants' case is that Bhikhaniya Devi was not the daughter of Shiv Prasad Yadav and that Shiv Prasad Yadav died in the year 1922 and, therefore, no property will devolve on the daughter.

(3.) ADMITTEDLY, from perusal of the lower appellate court judgment it appears that at the time of hearing of the appeal before the lower appellate court the appellants herein who were respondents did not appear. So far non-service of notice is concerned, in fact if no notice has been served then the appellants could have approached the same court and prove the fact that in fact no notice was served on them. Before this court in second appeal for the first time this disputed question of fact cannot be gone into particularly, when there is no evidence adduced by any of the parties. In my opinion, therefore, so far this first substantial question of law is concerned, it does not arise for consideration in this appeal. Further this was the subject matter of the Order 41 Rule 21 application but certainly same cannot be examined in second appellate jurisdiction. So far second substantial question of law is concerned, from perusal of the lower appellate court judgment it appears that the lower appellate court considering the materials available on record given a contrary finding deferring the finding of the trial court. In such circumstances, only on the ground that the lower appellate court has not mentioned in the judgment that the finding of the trial court is reversed it cannot be said that the judgment of the lower appellate court is vitiated.