Case Note & Summary
The present second appeal arises from a suit for partition and separate possession filed by the appellants (original plaintiffs) against the respondents. The suit was decreed by the trial court. The respondents appealed to the lower appellate court. The lower appellate court dismissed the appeal for non-prosecution. The appellants challenged this dismissal in the High Court. The High Court found that the lower appellate court had erred in dismissing the appeal for default without considering the merits. The High Court set aside the dismissal order and restored the appeal to the file of the lower appellate court for fresh decision on merits. The High Court also observed that the suit for partition and separate possession is maintainable even if the plaintiff is not in joint possession, as a co-owner can sue for partition without being in actual possession. The second appeal was allowed, and the lower appellate court was directed to decide the appeal afresh.
Headnote
A) Civil Procedure - Second Appeal - Dismissal for Default - Restoration - The lower appellate court dismissed the appeal for non-prosecution without considering the merits. The High Court held that such dismissal is illegal and set aside the order, restoring the appeal to the file of the lower appellate court for fresh decision on merits. (Paras 1-5) B) Hindu Law - Partition - Maintainability - Suit for Partition and Separate Possession - The suit for partition and separate possession is maintainable even if the plaintiff is not in joint possession. The court relied on the principle that a co-owner can sue for partition without being in actual possession. (Paras 1-5)
Issue of Consideration
Whether the lower appellate court was justified in dismissing the appeal for non-prosecution without deciding the appeal on merits, and whether the suit for partition and separate possession is maintainable when the plaintiff is not in joint possession.
Final Decision
The High Court allowed the second appeal, set aside the order of the lower appellate court dismissing the appeal for non-prosecution, and restored the appeal to the file of the lower appellate court for fresh decision on merits.
Law Points
- Partition suit
- maintainability
- joint possession
- non-prosecution
- dismissal for default
- restoration
- substantial question of law
