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2017 DIGILAW 94 (JHR)

Akshay Kumar, S/o Dr. Bhagwat Rana v. Bhagwat Rana, S/o Late Bishun Rana

2017-01-12

AMITAV K.GUPTA

body2017
ORDER : This second appeal is directed against the judgment of the Judicial Commissioner-IX, Ranchi in Title Appeal No.80 of 2013 affirming the judgment and decree passed by the Additional Munsif-II, Ranchi in Title Suit No.20 of 2004. 2. The respondent in the present appeal was the plaintiff in the court below. The plaintiff is the father of the defendant (appellant in the present appeal). The plaintiff instituted the suit for ejectment of the defendant from the suit property, measuring 2 Kathas and 8 chhatacks situated over MS Plot No.1148, Sub Plot No.1148/K corresponding to Ranchi Municipal Holding No.904 and 904/A (new No.959) Thana No.210 situated in Village Siron, Gossai Tank Road, P.O. and P.S. Chutia, District-Ranchi, comprising of three storied building. 3. The case of the plaintiff is that he had purchased the suit property from Smt. Usha Sachdeva and Om Prakash Sachdeva through their attorney Yashpal Anand vide registered sale deed on 15.12.1987. That after getting his name mutated in the shirista of the State and the Municipal Corporation and after demolishing the old house he constructed a three storied building. He had obtained loan from Bihar State Housing Cooperative Federation Ltd. and Allahabad Bank for construction of his house. That the defendant is his son and is residing in a portion of the first floor consisting of two bed room, one latrine and one bath room. It is alleged that the defendant and his wife, i.e. daughter-in-law of the plaintiff, were having greedy eyes on the self-acquired property of the plaintiff. The defendant wanted to grab the property and had been threatening the plaintiff to handover the entire property to him. That due to the strained relationship and the antisocial activities of the defendant the plaintiff got a general notice published in the daily newspaper namely, Ranchi Express debarring the defendant from any right, title or interest over the said property. He also sent a legal notice dated 23.12.2003 asking the defendant to vacate the said premises within 15 days and on 16.01.2004 the plaintiff executed a registered Will in favour of his three daughters with respect to the three storied building. Thereafter the suit was instituted for ejectment of the defendant from the suit property detailed in the schedule of the plaint. 4. The defendant contested the suit and filed his written statement denying that the property was purchased exclusively from the income of the plaintiff. Thereafter the suit was instituted for ejectment of the defendant from the suit property detailed in the schedule of the plaint. 4. The defendant contested the suit and filed his written statement denying that the property was purchased exclusively from the income of the plaintiff. It is stated that his grand mother Ugani Devi had given Rs.1,50,000/- as contribution money to the plaintiff for purchasing the property on an agreement that the property would be purchased in the name of the defendant but the plaintiff had purchased the suit property in his own name. It is asserted that in the year 1991 the plaintiff had taken Rs.65,000/- as dowry from Dwarka Rana, the father-in-law of the respondent and cash of Rs.28,000/- for purchase of scooter. It is pleaded that the plaintiff had invested the said money for renovation and repair of the building. It is contended that the plaintiff and defendant constitute a joint Hindu family and they are residing together and there is no relationship of landlord and tenant between the parties. That the defendant has contributed towards the expenses of the joint family from his salary and the suit property belongs jointly to the plaintiff and defendant. That the plaintiff has greedy eyes upon the suit property and wants to oust the defendant from the suit property. On the above grounds it has been asserted that the suit is not maintainable. 5. Both the parties examined witnesses and also adduced documentary evidences. Exhibit-X is copy of sale deed, Exhibit-1 is correction slip, Exhibit-2 is rent receipt, Exhibit-3 tax receipts dated 04.07.1991 issued by Ranchi Municipal Corporation, Exhibit-4 is telephone bill dated 08.11.2005, Exhibit-5 is Electricity Bill, Exhibit-6 is statement of account of loan of A/C No.30128 of Allahabad Bank, Ranchi for the period 28.11.2003 to 04.08.2005, Exhibit-7 is disbursement and collection report of Bihar State Housing Cooperative issued by Bihar State Housing Cooperative Federation Ltd., Patna, Exhibit-8 is declaration affidavit dated 03.12.2003 and Exhibit-9 is copy of the daily newspaper Ranchi Express dated 12.12.2003, Exhibit-10 is Will of Dr. Bhagwat Rana dated 16.01.2007 and Exhibit-11 is certified copy of sale deed dated 15.12.1987. The defendant examined four witnesses but no documentary evidence was adduced by him. Bhagwat Rana dated 16.01.2007 and Exhibit-11 is certified copy of sale deed dated 15.12.1987. The defendant examined four witnesses but no documentary evidence was adduced by him. On the pleadings of the parties the trial court framed as many as seven issues and the relevant issues namely issue Nos.4, 5 and 6 (i) Whether the property was a joint Hindu Family property and purchased from the joint fund ?; (ii) Whether the plaintiff had the right to evacuate the defendant from the suit property ? and (iii) Whether he was entitled to possess the said suit property ? and these issues were decided in favour of the plaintiff and the suit decreed for ejectment of the defendant from the suit property. The first appellate court on examination and discussion of the evidence on record affirmed the judgment and decree of the trial court. Being aggrieved the defendant/appellant has preferred this second appeal. 6. Learned counsel for the appellant has strenuously argued that the courts below have not considered and appreciated the fact that the plaintiff/respondent has sought ejectment of the defendant/appellant from the suit premises without seeking a declaration of his title hence, the findings of the first appellate court as well as the trial court suffers from perversity. 7. Heard. Learned counsel has not been able to bring forth or enunciate as to what is the perversity in the findings recorded by the appellate or trial court. On the perusal of the impugned judgment it is evident that the appellate court has categorically held that the defendant/appellant has not produced any evidence to substantiate his plea that his grandmother had contributed Rs.1,50,000/- for purchase of the house or the plaintiff/respondent had invested the money received from the father-in-law of the defendant, for renovation of the house. It is evident that the defendant/appellant has failed to adduce any material evidence to prove the fact that the suit property was not purchased exclusively from the plaintiff's income. The plaintiff had adduced documentary evidence in support of the plea that the property was purchased exclusively from the income of the plaintiff. The lower appellate court has also framed the points for determination and after meticulous examination of the evidence adduced by the parties and on consideration and discussion of the evidence and the law has recorded its findings affirming the judgment and decree of the trial court. The lower appellate court has also framed the points for determination and after meticulous examination of the evidence adduced by the parties and on consideration and discussion of the evidence and the law has recorded its findings affirming the judgment and decree of the trial court. The argument of the learned counsel for the appellant that due to the bar under Section 28 of the Hindu Succession Act, 1956 the father cannot disown or disinherit the son/defendant from the suit property has been considered and responded to by the courts below and it has been rightly held that a son can live in the house of the parents as a matter of right only when the property is an ancestral property and in which he has a share but where a property is a self-acquired property of the father or mother, the son whether married or unmarried has no legal right to live in that house and he can live only at the mercy of the parents for the time they permit him to do so. 8. It is abundantly clear that there is no perversity in the findings of the lower appellate court, hence, no substantial question of law is involved in this appeal. Therefore, the judgment of the lower appellate court is hereby affirmed. In the result this appeal stands dismissed.