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2002 DIGILAW 511 (MP)

Shivnarayan v. Ramprasad

2002-05-09

A.K.GOHIL

body2002
JUDGMENT 1. This second appeal was admitted for final hearing on the following substantial question of law: "Whether in the facts and circumstances of the case, the learned lower appellate Court has committed an error in holding that Awantipura house at Ujjain was not a HUF property?" 2. Appellant Shivnarayan and respondent No.1 Ramprasad both are real brothers and they are sons of late Bhawanisingh. After the death of Bhawanisingh in the year 1961, one of his sons, Ramprasad, filed a suit for partition against his brother/appellant-defendant Shivnarayan. One Vijaysingh was also added as a party as a relief was also sought for declaring the sale-deed as null and void executed by Shivnarayan in favour of Vijaysingh for one of the houses belonging to HUF. In the written-statement appellant Shivnarayan had taken a specific plea that in this suit for partition, one of the properties situated at Awantipura, Ujjain has not been included, whereas the said property was the property of HUF. Initially, on this question no issue was framed by the trial Court but the trial Court included the aforesaid house of Awantipura in the decree for partition which was granted on 9.12.1977, against which respondent No. 1-plaintiff Ramprasad filed an appeal challenging the aforesaid part of the decree. The first appellate Court, by order dated 22.8.1978, exercising the powers under Order XLI Rule 25 of the Code of Civil Procedure, framed additional issues and remitted the case to the trial Court for recording a finding on the additional issues after recording the evidence of the parties. Thereafter, the trial Court recorded evidence of the parties on the aforesaid additional issues and by order dated 7.7.1979 recorded the findings and forwarded the same to the first appellate Court. After appreciating the evidence, which was produced by the parties, the trial Court came to this conclusion that the said house situated at Awantipura, Ujjain was purchased by Bhawanisingh, the father of the parties, by a registered sale-deed dated 25.1.1958 from Chensingh @ Sardarsingh. Copy of the Sale-deed is Ex. D-1. Subsequently, Bhawanisingh transferred the house by a registered sale-deed dated 13.1.1961 to Smt. Shantidevi, wife of Ramprasad. The trial Court further found that the aforesaid house situated at Awantipura, Ujjain was not purchased by Bhawanisingh from the income of any ancestral property. Therefore, it was held that the said house was purchased by Bhawanisingh and it was his self-acquired property. Subsequently, Bhawanisingh transferred the house by a registered sale-deed dated 13.1.1961 to Smt. Shantidevi, wife of Ramprasad. The trial Court further found that the aforesaid house situated at Awantipura, Ujjain was not purchased by Bhawanisingh from the income of any ancestral property. Therefore, it was held that the said house was purchased by Bhawanisingh and it was his self-acquired property. Thus, he was fully entitled to transfer the same in favour of anyone, if it was transferred in the name of wife of Ramprasad, then it is not open for partition. After these findings, the first appellate Court heard the appeal on merits. The first appellate Court, by its judgment and decree dated 13.7.1982, allowed the appeal of respondent No. 1 Ramprasad and set-aside the part of the decree granted by the trial Court. It was held by the first appellate Court that house situated at Awantipura, Ujjain was the self-acquired property of Bhawanisingh and he had rightly sold it to Smt. Shantidevi by registered sale-deed dated 13.1.1961 and, therefore, it was wrongly included in the decree of the partition by the trial Court and it was further held that the said house being the exclusive property of Smt. Shantidevi, is not the property of HUF and is not available for partition, against which the appellant-defendant Shivnarayan has filed this second appeal before this Court, which was admitted for final hearing on the aforesaid substantial question of law. 3. I have heard Shri Saxena, learned Senior Advocate instructed by Shri Raoka, for appellant and perused the record. None was present on behalf of respondents. 4. After perusal of the record and the evidence of the parties, I am of the view that no substantial question of law is involved in this appeal for determination by this Court. This matter stands concluded by the concurrent finding of fact recorded by the two Courts below. The trial Court, by its judgment dated 7.7.1979, has clearly held that the house in dispute was not the property of HUF but the self-acquired property of late Bhawanisingh, therefore, he had every right to transfer the same and the same was not available for partition. The trial Court, by its judgment dated 7.7.1979, has clearly held that the house in dispute was not the property of HUF but the self-acquired property of late Bhawanisingh, therefore, he had every right to transfer the same and the same was not available for partition. The first appellate Court also confirmed the aforesaid finding holding therein that burden of proof was on Shivnarayan to prove that the house of Awantipura Wala is the property of HUE The first appellate Court also examined the evidence of Shivnarayan and I, too, have gone through the said evidence. The submission of DW 2 Shivnarayan in his statement was that for the purchase of the said house, he had given money to his father Bhawanisingh but this part of the evidence was not proved by any other evidence that how the money was given by him for purchase of the said house to the father. The recitals of sale-deed Ex. D-1 were also considered. The appellant herein has also failed to prove that Bhawanisingh was having any income from any of the joint property of Joint Hindu Family and he had purchased the disputed house from the income of the said property. Therefore, the first appellate Court rightly held that there is no evidence on record to prove that the house in dispute was purchased by Bhawanisingh from the income of HUF. 5. I have again perused the evidence of DW 2 Shivnarayan in the light of the submission made by learned counsel for appellant regarding statement of PW 1 Ramprasad about his ignorance on the disputed house. In para No. 5 of his examination-in-chief, DW 2 has clearly admitted that Ramprasad had purchased the house in dispute in the name of his father but for that, money was given by him. This admission of the appellant clearly shows that it was Ramprasad who had purchased the house in dispute in the name of his father. Though PW 1 Ramprasad has denied this fact and pleaded ignorance and has stated that he is not aware how the disputed house was transferred in the name of his wife. He is also not aware that how the transfer had taken place. Though PW 1 Ramprasad has denied this fact and pleaded ignorance and has stated that he is not aware how the disputed house was transferred in the name of his wife. He is also not aware that how the transfer had taken place. From the reading of his statement, it is clear that he was telling a lie and, therefore, his statement is not reliable, but even then, this Court cannot interfere in the said finding on this infirmity alone because this was the burden on the appellant to prove that the said house is the property of the HUF. The house in dispute is in the name of Smt. Shantidevi, and the same was transferred in her name by registered sale-deed by Bhawanisingh. She was also not made party in the suit. Therefore, the evidence of PW 1 that he is not aware how the property came in the name of his wife, is irrelevant and is not helpful to the appellant. Thus, in view of such a clear position on •record and in view of admission of appellant himself on record, the findings recorded by both the Courts below are neither perverse nor contrary to evidence on record; on the contrary, the concurrent finding is based on appreciation of evidence on record. Therefore, I do not find either any perversity in it or any ground for interference therein. The lower appellate Court has also not committed any error in holding that Awantipura house at Ujjain was not the property of HUF. Thus, for the foregoing reasons, I hold that the matter stands concluded by the concurrent finding of fact recorded by the two Courts below and no substantial question of law is involved in this appeal, and there appears to be no scope for interference by this Court in this second appeal. This Court can only interfere when finding is either contrary to evidence on record or perverse. If the concurrent finding by both Courts is based on appreciation of evidence, then no interference can be made in the second appeal. Therefore, the question which was framed by this Court while admitting this appeal, is answered accordingly. 6. In the result, this appeal fails and is hereby dismissed with no order as to costs. A decree be drawn up accordingly. Record be returned.