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2015 DIGILAW 988 (RAJ)

Narendra Mehra v. Pushpa Mehra

2015-05-05

PRAKASH GUPTA

body2015
JUDGMENT 1. - The present second appeal has been filed under Section 100 of CPC by the appellant-plaintiff, it is directed against the Judgment and decree dated 24/12/2014 passed by the Additional District Judge No. 2, Ajmer (hereinafter referred to as the appellate Court) in Civil Regular Appeal No. 18/2014 (55/2013), whereby, the appellate Court has dismissed the appeal and confirmed the Judgment and decree dated 01/05/2013 passed by the Additional Civil Judge (SD No.2), Ajmer in civil suit No. 05/2009 (90/2007). 2. The facts giving rise to the present appeal are that the appellants-plaintiffs had filed a suit seeking the relief for recovery of Kotri and mesne profit. 3. It was alleged in the plaint inter alia that a family settlement had been arrived at between the family members on 31/03/1995 whereby the disputed 'Kotri' was allotted as a share to the father of the plaintiff but the defendants continue to occupying the said 'Kotri' and had given the same on rent to Aashiyana communication. The appellant has prayed for the possession of the 'Kotri' and also for mesne profit. 4. The said suit was resisted by the respondent-defendant by filing the written statement wherein it is stated inter alia that no 'Kotri' was in existence but a store is there which is in the staircase was allotted as a share to the father of the defendant is existed by virtue of the family settlement dated 31/03/1995. 5. The trial Court, after appreciating the evidence on record, dismissed the suit of the appellant-plaintiff vide the Judgment and decree dated 24/12/2014 against which the appellants had preferred the appeal before the appellate Court. However, the said appeal was also dismissed by the appellate Court vide the Judgment and decree dated 24/12/2014. It is submitted by the learned counsel that both the Courts below have not considered a map annexed with to the family settlement. The disputed 'Kotri' was allotted as a share to the plaintiff by virtue of the family settlement dated 31/03/1995. This fact has not been properly considered by the Courts below. 6. Having regard to the submission made by the learned counsel for the appellant and to the Judgment and decree passed by the Courts below, it is clearly revealed that the appellant-plaintiff has miserably failed to prove the ownership or even the existence of the 'Kotri'. This fact has not been properly considered by the Courts below. 6. Having regard to the submission made by the learned counsel for the appellant and to the Judgment and decree passed by the Courts below, it is clearly revealed that the appellant-plaintiff has miserably failed to prove the ownership or even the existence of the 'Kotri'. As a matter of fact, the Courts below have held that there is no mentioned in the family settlement about the disputed 'Kotri' whereas a store is mentioned therein, which is situated in the staircase and was allotted as a share to family settlement that a store is situated in the staircase which is in the share of Suraj Narayan, husband of the respondent No. 1 and the father of the respondent Nos. 2 and 3. 7. Both the Courts below have rightly held that the appellant-plaintiff is not entitled to recover the possession of the alleged 'Kotri' and mesne profit. There being concurrent finding, arrived at by both the Courts below and there being no question of law much less substantial question of law involved in the present appeal. The appeal deserves to be dismissed and is accordingly dismissed.Appeal dismissed. *******