Civil Procedure Code, 1908, Order 41, Rule 17(1), 19 -- General Rules (Civil), 1957, R.89-A - Appeal - Dismissed in default - Appeal cannot be dismissed on merits in absence of appellant - Nothing on record to demonstrate that appellant or his counsel was present at the time of transfer of appeal or at the time of receiving appeal or at the time of hearing of appeal -..........
Civil Procedure Code, 1908, Section 100 -- Second appeal - Suit for mandatory injunction - Encroachment - Plaintiff never applied for demarcation or got her land demarcated - Defendant got the land demarcated and husband of plaintiff had admitted such demarcation to be correct - Courts below rightly concluded that since plaintiff never applied for demarcation of land and..........
Partition suit -- Suit property is not at all subject matter of earlier suit for partition - There is no severance between first branch under whom defendants are asserting right and second branch under whom plaintiffs are asserting their half share - Moreover, in a partition suit it is a recurring cause of action and if plaintiffs are not allotted any share in earlier..........
Civil Procedure Code, 1908, Section 100 -- Second appeal - Partition suit - Concurrent findings of Courts below are in record that defendants have failed to prove that they have perfected their title by way of adverse possession - Court therefore, u/s 100 CPC cannot revisit and reassess entire evidence on record - Suit rightly decreed in favour of plaintiff...........
Civil Procedure Code, 1908, Order 26, Rule 9 -- Local Commissioner - Defendant encroached upon suit land and built a shop - Said facts can only be clarified by way of Commissioner's report - Application allowed...........
Civil Procedure Code, 1908, Order 21, Rule 89, 90, 106 -- Auction sale - Setting aside - JD contended that he was not aware of decree as trial Court passed ex parte decree against him - However, Advocate was appointed by JD who filed vakalatnama and also filed written statement and counter in petition seeking attachment of property - Even, contention of JD that he was not..........
Evidence Act, 1872, Section 101, 102 -- Burden of proof - Partition suit - Initial burden is on plaintiff to show that suit property was a joint family/ancestral property - After initial discharge of burden, it shifts on defendant to show that property claimed by him was not joint family/ancestral property...........
Hindu Law -- Joint family property - Partition suit - Plaintiff failed to prove that suit property was purchased out of joint family fund and further failed to establish that prior to purchase of suit property there was a nucleus - Suit property is self acquired property of grandfather of plaintiff - Plaintiffs thus, failed to prove that suit property is joint family..........
Civil Procedure Code, 1908, Order 1, Rule 10 -- Impleadment of a party - Suit for possession - Defendant in his written statement stated that his wife is owner in possession of suit land - In absence of wife of defendant no effective decree for possession could be passed - Presence of wife of defendant is very much necessary for complete and effective adjudication of suit..........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Amendment of written statement - At the appellate stage - Partition suit - Defendant sought amendment of written statement with an additional plea that it is only a benami transaction - If amendment is allowed then additional issues have to be framed and additional evidence has also to be adduced on either side - Amendment..........
