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2015 DIGILAW 2 (CHH)

Neeta Nand v. Nand Kishore Chikle

2015-01-05

P.SAM KOSHY

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Order P. Sam Koshy, J. 1. This is the appellant/defendants' second appeal against the judgment and decree dated 13.3.2003 passed by the Additional District Judge, Rajnandgaon in Civil Appeal No. 41-A/2001. By way of the said impugned order, the 1st appellate court has, while rejecting the First Appeal of the appellants/defendants, affirmed and confirmed the judgment and decree dated 30.12.1997 passed by the Civil Judge, Class-1, Dongarhgarh in Civil Suit No. 25-A/95. Facts leading to the instant second appeal in brief are that deceased Laxman Rav Chikle, the original plaintiff had filed a suit for partition and permanent injunction against the appellants and the present respondents No. 1 & 2 are the legal heirs of the said deceased Laxman Rav. According to the respondents/plaintiffs, the house in question was purchased by deceased/plaintiff Laxman Rav from deceased Roopchand Shende on 24.4.1968 by way of a registered sale deed for a consideration of Rs. 12,000/-. According to the respondents/plaintiffs; in due course of time, the appellants/defendants started interfering with the peaceful possession of the respondents/plaintiffs over the suit house and which compelled them to file a suit for declaration, partition and possession. 2. After the pleadings were complete and the evidence was recorded, the trial court, vide its judgment dated 30.12.1997, found that in fact the original owner of the suit house was one Madhav Rav who died on 19.5.1964 and in whose possession, the total property measuring 5.91 acres was there and that he had 7 children of which, the eldest son was Roopchand Shende and that in addition to the agricultural land of 5.91 acres, the said Madhav Rav also had a house situated at Katikapara in Dongarhgarh measuring 3,334 sq. ft. 3. It is a case where the said eldest son of Madhav Rav i.e. Roopchand had sold the said house to the respondents/plaintiffs for an amount of Rs. 12,000 vide sale deed dated 24.4.1968 for consideration of Rs. 12,000. 4. The finding of the trial court also was to the extent that since Madhav Rav had died on 19.8.1964 and that he had left behind his wife and 7 children, the property belonging to Madhav Rav had to be shared between the 8 legal heirs and as such each of the respondents/plaintiffs and Roopchand, the person who had sold the property to the respondents/plaintiffs would be entitled for 1/8th of the share in the property of Madhav Rav. Based upon this, the trial court, vide its judgment dated 30.12.1997, held that the property of the respondents/plaintiffs has to be partitioned between the legal heirs of Madhav Rav giving 1/8th share in the suit property to each of the shareholders and that Roopchand be also entitled for 1/8th of the share and the property which has been sold by Roopchand to the respondents/plaintiffs should be brought in the share which would come to Roopchand. Accordingly, the permanent injunction was also issued, restraining the appellants/defendants from interfering with the title and possession of the respondents/plaintiffs over the suit property. 5. It is this judgment dated 30.12.1997 which was put to challenge before the 1st appellate court i.e. the Additional District Judge, Rajnandgaon by way of Civil Appeal No. 41-A/2001. 6. On due consideration of the submissions and also the contentions put forth by the appellants, the 1st appellate court also, vide its judgment dated 13.3.2003 rejected the First Appeal, confirming the judgment and decree of the trial court. 7. The 1st appellate court, while considering the total facts and circumstances of the case, reached to the conclusion that in fact Roopchand was entitled for 1/8th of the share in the property of Madhav Rav and that the property belonging to Madhav Rav should be partitioned in a manner that 1/8th of the share comes to Roopchand which would also include the suit house belonging to the respondents/plaintiffs and that the appellants/defendants were further restrained from making any sort of interference with the peaceful possession of the suit house by the respondents/plaintiffs. 8. The contentions of the appellants/defendants so as to say that the property belonging to Madhav Rav had already been partitioned and Roopchand had already got his share in the property of Madhav Rav has not been established by them in any manner before the trial court nor before the 1st appellate court and therefore, the said contention was also not accepted by the 1st appellate court and even the finding on the question of limitation was also decided against the appellants/defendants and the 1st appellate court, finally vide its impugned judgment dated 13.3.2003, rejected the First Appeal. 9. It is this judgment dated 13.3.2003 which has been put to challenge by way of the instant Second Appeal. 10. 9. It is this judgment dated 13.3.2003 which has been put to challenge by way of the instant Second Appeal. 10. In the instant Second Appeal also, counsel for the appellants raises the same contentions which have already been thrashed out and stands decided before the two courts below by giving specific and concurrent finding of facts. He now tries to take the Court through the findings of the two courts below and wanted the Court to re-appreciate the entire evidence and reach to a different conclusion, which otherwise is not permissible under the powers conferred to entertain a Second Appeal. Since the grounds raised are all finding of facts and there being concurrent finding of the two courts below on the issues raised further there being no substantial question of law, the Second Appeal fails and is accordingly rejected.