9911796707
TMI Blog1950 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... restring the Defendants from building upon the land in dispute. The Defendants contends that there was no question of title involved in the suit and, therefore, the suit was not coning able by a civil Court. They further asserted that the Plaintiff was present at the time of the partition and cannot repudiate it. The suit was also said of be for a declaration in respect of only a part the land in dispute and, therefore, not maintainable. Objection was taken to the form of the suit and insufficiency of the court fees. On these pleadings the following issues were framed: 1. Is this suit to challenge simply the mode of partition and is not a title suit cognizable by a civil Court? 2. Was the partition invalid for reasons stated In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the parties' predecessor-in-title. The title of the Plaintiff to the fields which were in the possession of the contesting Defendant had, therefore, been clearly denied and the suit was, therefore, for a declaration of title Amar Singh v. Bam Singh A.I.R 1933 Lah. 236 : 13 Lah. 471, was relied on by the Defendants but was distinguished by the trial Court on the ground that that was not a case of private partition. The partition in that case had been effected by the revenue Court and the objection taken by the Plaintiff in the suit was that he had not been properly represented before she revenue Court. As there was right of appeal and revision to the revenue authorities in this case it was held to be inapplicable to the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27th November 1946 the Defendants filed an appeal and in the judgment-of the Appellate Court it is said that the only point argued in appeal was whether the suit was merely to challenge the mode of partition and, as such, was not cognizable by a civil Court. The case relied upon by the trial Court in decreeing the suit of the Plaintiff was sought to be distinguished in appeal on the ground that in that case the Plaintiff had alleged that he was the joint owner of the property in suit. The Appellate Court observed that the present suit was also for a declaration to the effect that mudai arazi zail men mushtar ka malik wa qabiz hai. The finding of the trial Court was upheld in appeal and the present suit was held not to be merely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts involved in those issues had been pressed in appeal. In Hans Raj v. Karam Chand A.I.R 1933 Lab. 670 : 145 I.C. 113, it was held that where a Judge mentions specifically certain points which were argued before him and the judgment is silent on other points taken in the memorandum of appeal, it may be presumed that such points have been abandoned. In Muhammad Aslam v. Mehr Singh 102 I.C. 841 : A.I.R. 1927 Lab. 768, the same view was taken and it was added that the presumption of the unargued grounds of appeal having been abandoned was all the more necessary in the absence of an affidavit to the contrary by the counsel who appeared in the Appellate Court. It was further held in this case that the grounds of appeal abandoned in the lower App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the guardian died on 15th January 1915. There is no evidence that any other guardian was appointed and the case of the Appellant is that the Plaintiff acted on his own behalf in the matter of the partition long before he became a major. The Respondents contention in the first Court of, appeal was that even for a declaration that the partition effected by the Plaintiff during minority was void recourse should have been had to a revenue and not to a civil Court. This contention was repelled by the Court of appeal and it covered the second ground of appeal. 9. In Sukhdeo Singh v. Mathra Singh A.I.R.1933 Lab. 412 : 112 I.C. 606, it was held by a Division Bench of this Court that by disputing the Plaintiffs' title to a part of the lands h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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