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1985 DIGILAW 324 (ALL)

Tribeni v. Ram Deo

1985-03-19

N.D.OJHA

body1985
JUDGMENT N.D. Ojha, J. - This is defendants second appeal arising out of suit for cancellation of two sale deeds and a gift deed executed by Smt. Karamdani respondent no. 6. 2. The case of the Plaintiff-respondents was that Sheoraj was common ancestor of the parties. He bad three sons Jhinju, Samujh and Chhotu. The plaintiff and defendants other than respondent no. 6 are the descendants of Jhainju and Samujh. Smt. Karamdani respondent no. 6 was the wife of Chhotu. According to the plaintiff-respondents Chhotu died about 14 years before the institution of the suit giving rise to the present second appeal and on his death Smt. Karamdani remarried. Their case further was that as a result of her remarriage, she lost all interest in the land which had devolved from the common ancestor Sheoraj on his three sons including Chhotu, and that the sale-deeds and the gift-deed in question having been executed by Smt. Karamdani after her remarriage were void. 3. The suit was contested by the appellant mainly on two grounds ; (1) that Smt. Karamdani had not remarried after the death of her husband Chhotu and (2) that even if her remarriage was proved, she had acquired title by adverse possession over the land which was the subject matter of the sale-deeds and the gift deed on account of her continued possession over the said land even after her remarriage. 4. The trial court held that Smt. Karamdani had remarried after the death of her husband Chhotu and consequently she had lost all interest in the land in question. It, however, recorded a finding in favour of the appellant that Smt. Karamdani on account of her continued possession over the land in question had acquired title by adverse possession. On these findings the suit for cancellation of the two sale-deeds was dismissed. It was, however, decreed in so far as the cancellation of the gift-deed in question was concerned. The decree passed in favour of respondent in appeal before the lower appellate court. The appeal has been allowed and the suit for cancellation of not only the gift deed but also of the two sale-deeds has been decreed. It is against this decree that the present second appeal has been preferred. 5. Having heard the learned counsel for the appellant I am of the opinion that there is no substance in this second appeal. It is against this decree that the present second appeal has been preferred. 5. Having heard the learned counsel for the appellant I am of the opinion that there is no substance in this second appeal. The finding that Smt. Karamdani on the death of her husband had remarried is essentially a finding of fact based on the appraisal of the evidence and does not suffer from any such error which may justify interference in this second appeal. So is the case with the finding recorded by the lower appellate court, reversing the finding of the trial court in regard to the question as to whether Smt. Karamdani had acquired title by adverse possession. The lower appellate court has on the appraisal of the evidence produced by the parties including the Smt. Karamdani herself recorded a finding that Smt. Karamdani had not been in possession over the land in question after her remarriage. This finding again is a finding of fact and cannot be interfered with in the present second appeal. 6. In the result the second appeal fails and is dismissed but there shall be no order as to costs.