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2010 DIGILAW 957 (JHR)

Sunil Kumar Bhandari v. Chandi Das Bhandari

2010-10-01

N.N.TIWARI

body2010
Order This appeal is against the judgment and decree of learned 3rd Additional District Judge, FTC., Dumka in Title Appeal No.15 of 1994, whereby learned lower appellate court has affirmed the judgment and decree of learned Subordinate Judge-I, Dumka in Title (P) Suit No. 37 of 1983. 2. The case of the plaintiffs was that they had filed the said Partition Suit claiming 1/3rd share in the suit property on the ground that the suit property was jointly recorded in the name of Niwaran Bhandari, Bishto Bhandari @ Vishnu Bhandari and Baidyanath Bhandari. Further case was that the then landlord Mr. Grant got a private survey done regarding the lands of his estate and in - that survey, the suit property was jointly recorded in the name of Niwaran Bhandari, Bishto Bhandari @ Vishnu Bhandari and Baidyanath Bhandari and the plaintiffs being the descendants of Baidyanath Bhandari have got 1/3rd share. 3. The defendants had contested the suit stating, inter alia, that there is no unity of title and possession between the parties. The suit land was the self-acquired property of the defendants. The property belonging to the common ancestor Dinanath Bhandari. The same was Basori land with a house and was acquired by the Government for construction of quarters of medical staff. The father of the defendants thereafter had acquired the suit land and constructed the houses over the same. The defendants, thus, denied the plaintiffs claim of 1/3rd share in the suit property. 4. Several issues were framed by learned trial court including the issue regarding unity of title and possession of the party over the suit land. 5. Both the parties led their evidences in the suit. On thorough appraisal of facts and evidences on record, learned trial court found that the suit land was the self-acquired property of the defendants and the plaintiffs have absolutely no right, title or share in the same. 6. learned trial court thus dismissed the plaintiffs' suit. The plaintiffs thereafter preferred title appeal in the Court of District Judge, Dumka, which was finally heard and decided by learned 3rd Additional District Judge, F.T.C., Dumka by the impugned judgment and decree. 7. Learned lower appellate court thoroughly discussed the facts, evidences and materials on record and after due consideration of all the relevant aspects, concurred with the finding of learned trial court. 7. Learned lower appellate court thoroughly discussed the facts, evidences and materials on record and after due consideration of all the relevant aspects, concurred with the finding of learned trial court. Learned lower appellate court in its conclusion held that there is no unity of right, title and possession between the parties with respect to the suit property and the suit property is the self-acquired property of the defendants. Learned lower appellate court dismissed the appeal. 8. Mr. V. Shivnath, learned Senior Counsel, appearing on behalf of the appellant, has assailed the judgment and decree of learned lower appellate court on the ground that learned trial court has not properly appreciated the facts and materials on record and has recorded finding of previous partition without framing any such issue. The impugned judgment and decree is, thus, improper and illegal. 9. Having heard learned counsel for the appellant, I perused the impugned judgment of learned lower appellate court as also that of learned trial court. I find that learned trial court as well as learned lower appellate court framed specific issue regarding unity of right, title and possession between the parties. Under the said issue, all the aspects relating thereto have been discussed by learned courts below in the light of materials and evidences available on record. After thorough appraisal of the documentary and oral-evidences, both the courts have concurrently found that there is no unity of right, title and possession between the parties and that the suit property in which the plaintiffs have claimed 1/3rd share was self-acquired property of the defendants and the plaintiffs have absolutely no right to claim any share. 10. The finding of learned lower appellate court is based on legal evidences and the reasons recorded therein is also well discussed and well founded. The same finding was also recorded by learned trial court. 11. The said concurrent finding of facts is binding on the Second Appellate Court. No error has been pointed out in the impugned judgment and decree giving rise to any substantial questions of law. 12. This appeal is, accordingly, dismissed.