ORDER :

REKHA BORANA, J.

1. The present regular first appeal has been preferred against the judgment and decree dated 12.08.2016 passed by the Additional District Judge No.5, Jodhpur Metro in Civil Original Suit No.434/2012 (NCV No.10597/14) whereby in a suit for partition as preferred by the plaintiffs, learned trial Court proceeded on to pass preliminary decree for partition.

2. The brief facts of the case are as under:

i. A suit for partition was preferred by one Manmohan S/o Late Shri Moolkaran against his brother Prem Prakash and three sisters.

ii. In the said suit, an application under Order 1 Rule 10, CPC was preferred by Chhota Devi, wife of defendant No.1-Prem Prakash for impleadment with the submission that a will was executed by her mother-in-law Radha Devi in her favour by virtue of which she became the sole owner of the property in question and therefore, the property cannot be partitioned. The said application was allowed and Chhota Devi was permitted to be impleaded as defendant No.5 in the suit.

iii. A joint written statement was filed by defendant No.1-Prem Prakash and his wife Chhota Devi, defendant No.5. The case of defendant Nos.1 & 5 was that the property had already been orally partitioned and the residential house in question had come into the share of defendant No.1. The partition having already been made, no partition can now be prayed for.

iv. Written statement on behalf of the other defendants, the sisters, was filed with the specific submission that they do not want any share in the property and the property be partitioned equally between the plaintiff and defendant No.1. No factum of any oral partition having made was pleaded by the said defendants.

v. During the suit proceedings, an application was preferred by the plaintiff with a prayer that the will as placed on record by defendant No.5-Chhota Devi cannot be read in evidence and be not taken on record. The said application as filed by the plaintiff was allowed vide order dated 04.09.2012 by the Court below. Aggrieved of the said order, a writ petition was preferred before this Court being S.B. Civil Writ Petition No.13644/2012 which was allowed vide order dated 11.02.2014 and vide the said order, the Court below was directed to permit the will to be exhibited. In pursuance to the said order, the will was exhibited as Exhibit-A1.

vi. Although the will was exhibited, the counsel appearing for defendant-Chhota Devi closed his evidence on the same date but subsequently, moved an application for permission to examine certain other witnesses. The said application under Order 18 Rule 17, CPC was rejected vide order dated 23.05.2014. Aggrieved against the said order, a writ petition was again filed by defendant Nos.1 & 5 before this Court being S.B.C.W.P. No.5356/2014 which was allowed on 18.03.2015. Vide order dated 18.03.2015, the petitioner was permitted to produce one witness namely Shanti Devi on the next date itself and it was made clear that if the witness is not produced on the said date, the writ petition would be deemed to have been dismissed.

vii. Admittedly, no witness was examined on behalf of defendant Nos.1 & 5 on that date.

viii. Ultimately, vide judgment and decree dated 12.08.2016, the suit was decreed by the Court below holding the plaintiff to be entitled for partition and further, to get 1/5th share in the rent qua the shops in the disputed property.

ix. Aggrieved against the said judgment and decree, a regular first appeal was preferred jointly by defendant Nos.1 & 5 which was registered as S.B. Civil First Appeal No.370/2016.

x. Interestingly, on 14.02.2017, Chhota Devi, the present appellant, being appellant No.2 in the said first appeal, sought permission to withdraw the appeal with liberty to assail the impugned judgment and decree appropriately.

The said permission as sought was granted and appeal No.370/2016 was dismissed as withdrawn on part of appellant No.2 with the liberty as prayed for.

xi. After withdrawing the said appeal, Chhota De