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2007 DIGILAW 1763 (PAT)

Rajendra Mahto v. Lakhan Mahto

2007-11-13

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the appellant. Respondents have appeared through their counsel. 2. Plaintiff is the appellant. This second appeal has been preferred against the concurrent finding of the trial court as well as appellate court. 3. Plaintiffs suit was for partition of half share in the suit property and for declaration that the deed of gift dated 1.3.82 is illegal. Admitted case of the parties is that the joint family property was earlier orally partitioned and subsequently it was partitioned through registered deed dated 15.9.1979. After the partition the members of the joint family came in separate possession of their respective shares. Further case of the plaintiff is that the property which was given to the share of Ganuari Mahto the father of plaintiff no. 1 and defendant no. 2 was kept in joint stock subject to the final decision in Title Suit No. 47 of 1979. During the pendency of the suit Ganauri Mahto executed a deed of gift in favour of defendant no. 2 Subhadra Devi wife of defendant no. 1. During the pendency of the suit Ganauri Mahto died and Subhadra Devi was substituted in his place and the suit was decreed in favour of Ganauri Mahto who was plaintiff thus the property which were allotted in the share of Ganauri Mahto and transferred in favour of defendant no. 2 through registered deed of gift. With respect to that title and possession of defendant no. 2 was declared. 4. The case of defendant nos. 1 and 2 was that after partition Ganuari Mahto executed deed of gift with respect to the shares of property allotted in his share which has not kept in joint stock rather it was exclusive property of Ganuari Mahto. On the basis of such gift defendant no. 2 came in exclusive possession of property. Since partition is admitted by the plaintiff as such the property once partitioned cannot be partitioned again. 5. Concurrent finding of the trial court and appellate court is that once the plaintiff is admitting the partition through registered dead he cannot assert that the property allotted to the share of Ganauri Mahto was in the joint stock. On the basis of oral evidence the writing in a document cannot be demolished on the basis of oral evidence. Further concurrent finding is that the suit was barred by res judicata. 6. Considering the fact that the suit no. On the basis of oral evidence the writing in a document cannot be demolished on the basis of oral evidence. Further concurrent finding is that the suit was barred by res judicata. 6. Considering the fact that the suit no. 47 of 1979 was filed by Ganuari Mahto and in the suit the plaintiff and defendant no. 2 were parties after the death of Ganauri Mahto, Subhadra Devi defendant no. 2 was substituted on the basis of deed of gift executed in her favour the suit was concluded in favour of Subhadra Devi, now the plaintiff being one of the parties in Title suit No. 47 of 1979 cannot challenge the same gift deed which was decided by a competent court of jurisdiction. On the face of this concurrent finding recorded by the trial court and the appellate court I do find that there is any substantial questions of law which needs interference in the second appeal. This appeal is dismissed.