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2012 DIGILAW 781 (MP)

Ganga Prasad v. Nand Kumar

2012-08-06

J.K.MAHESHWARI

body2012
JUDGMENT Heard on admission. 1. This second appeal has been filed by the plaintiffs losing from the two Courts below assailing the judgment and decree dated 24.2.2009 passed by the lower appellate Court in Civil Appeal No. 59-A/2008 and the Judgment and decree dated 15.10.2008 passed by the trial Court in C.S. No. 216-A/2008. 2. Defendant No.1 was the purchaser of land of Khasra Nos. 245 and 447 (old) and Khasra Nos. 265 and 268 (new) 58 decimal situated in village Sursa Khurd, Tahsil Raipur Karchuliyan, district Rewa by registered sale deed dated 29.11.1965 from Brijkumar. At the time of mutation dispute arose due to objection raised by Ramkumar, who is legal heir of sitaram, however, a suit was filed before the Court seeking declaration that the sale deed executed by Brijkumar with respect to the said land in favour of the defendant No. 1 is void ab initio because it is an ancestral property and the partition has not taken place, however, the prayer so made is to declare that Brijkumar has no right, title and interest and also the sale deed so executed by him in favour of defendant No. 1 is void ab initio. 3. Defendants No. 1 to 6 have filed their written statement stating the fact that the partition has taken place in 1958-59 and the land which was purchased by them is of the ownership of Brijkumar, however, he has rightly executed the sale deed of the said land. The suit filed by the plaintiffs after such inordinate delay is barred by limitation and not maintainable. After hearing learned counsel for the parties the trial Court as well as lower appellate Court found that the suit property was the ancestral property but the partition thereof has taken place somewhere in the year 1958-59 and the evidence to that effect is available, however, it is held that the execution of the sale deed by Brijkumar with respect to the disputed land in favour of defendant No. 1 is valid and the plaintiffs are not entitled to claim right, title and interest in the said land. 4. Shri R.P. Agrawal, learned senior counsel appearing on behalf of the appellants has strenuously urged that suit property is ancestral property and the partition has not taken place by written document. 4. Shri R.P. Agrawal, learned senior counsel appearing on behalf of the appellants has strenuously urged that suit property is ancestral property and the partition has not taken place by written document. It is further urged that the case of the plaintiffs has been admitted by the defendants No.7 to 13 who are legal heirs of Brijkumar, however, aforesaid evidence ought to be relied upon by the trial Court. The finding accepting the plea of partition so recorded by the trial Court as well as lower appellate Court to dismiss the suit of the plaintiffs seeking declaration is against the evidence so brought on record. It is further submitted that defendant No.1 Nandkumar (DW-1) in para 19 of his statement has admitted that Brijkumar was not having any right and tile in the said land, however, in view of the statement of Nandkumar the finding of fact so recorded by two Courts below is reverse, therefore, this appeal may be admitted. 5. After hearing Shri Agrawal, learned senior counsel appearing on behalf of the appellants and on perusal of the record it is not in dispute that Yadunandanram was the ancestor of Shyamsundar and Sitaram. Shyamsundar was having one son Brijkumar and Sitaram was having one son Ramkumar. During their life time partition has taken place in the year 1958-59 and as per such partition the disputed land has fallen into the share of Brijkumar who has executed the sale deed in favour of defendant No. 1 on 29.11.1965 with respect to the said land, however, the defendants have become absolute owner of the suit property by virtue of the said sale deed . It is not in dispute that the suit has been filed on 23.12.2006 after more than 41 years of the execution of the sale deed by Brijkumar. It is to be observed here that the plaintiffs who are legal heirs of Ramkumar have filed the suit seeking declaration of title on the disputed land also to daclare sale deed dated 29.11.1965 as void in view of the fact that Brijkumar (predecessor) who executed the sale deed in favour of defendant No.1 Nandkumar has no right, title and interest in the property. In such a case legal heirs of Brijkumar has admitted the claim of the plaintiffs who are legal heirs of the brother of his father. In such a case legal heirs of Brijkumar has admitted the claim of the plaintiffs who are legal heirs of the brother of his father. It is to be further examined that after execution of the sale deed in favour of defendant No.1 why plaintiffs remained silent upto 41 years. In the said context evidence so brought on record are required to be examined. 6. Learned trial Court accepting the statement of the plaintiffs recorded a finding that the partition has taken place prior to execution of the sale deed by Brijkumar. After registration of the sale deed in favour of defendant No.1 on 29.11.1965 he has become owner of the said property by the said deed of title. The Court disbelieved the statement of the defendants on the point of partition and accepted the statement of the plaintiffs. On perusal of the record it is apparent that Brijkumar executed a sale deed in favour of defendant No.1. Defendant No.1 Nandkumar in para 19 of his statement though admitted regarding title of Brijkumar, but in the same paragraph in subsequent line he has denied on being asking in question by the plaintiff. In such circumstance the statement of Nandkumar cannot be read in piecemeal and the entire evidence is required to be read. If we go through the entire statement of Nandkumar, then it may clear that he has supported the plea of partition and Brijkumar executed the sale deed of his share. In such circumstances the finding so recorded by the lower appellate Court on the issue of partition and the partition has taken place prior to execution of the sale deed appears to be just. It is to be held that the plaintiffs are unable to prove their case that prior to execution of the sale deed partition has not taken place. In absence of cogent evidence to that effect finding of fact so recorded by the Court below do not warrant any interference by this Court. In view of the foregoing no substantial question of law arises for determination by this Court. 7. Accordingly, this appeal stands dismissed at admission stage. No costs.