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2018 DIGILAW 687 (JHR)

Ajay Kumar Singh v. Paras Nath Gupta

2018-03-27

RAJESH KUMAR

body2018
ORDER : I. A. No. 1732 of 2016 1. The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 9 days in preferring the present appeal. 2. Learned counsel for the respondents has no objection to such prayer. 3. Having regard to the reasons stated in the instant interlocutory application, I. A. No. 1732 of 2016 is allowed and delay in preferring the appeal is hereby condoned. 4. I. A. No. 1732 of 2016 stands disposed of. I. A. No. 187 of 2018 5. By way of I. A. No. 187 of 2018, appellants pray for substitution of deceased respondent nos. 2 and 3 by their legal heirs and for deletion of name of respondent no. 7, who died issueless. 6. In view of the above submission made, prayer made in I. A. No. 187 of 2018 is allowed. Accordingly, let legal heirs of the deceased respondent nos. 2 and 3 mentioned in para-5 and 6 of the instant I. A. be substituted in place of respondent nos. 2 and 3 and delete the name of respondent no. 7 from array of respondent, for which necessary correction be carried out by the learned counsel for the appellants in the cause title in red ink during course of the day. 7. I. A. No. 187 of 2018 stands disposed of. Second Appeal No. 30 of 2016 8. The present case is arising out of the concurrent findings of both the Courts below. 9. The plaintiff's-respondents have filed Title Suit No. 23 of 2003 for declaration of their right, title, interest and possession over the suit property as mentioned in Schedule-A of the plaint. 10. The plaintiff's have claimed the suit land on the basis of sale deed. 11. Issue nos. III to VI framed by the learned Court below is reproduced hereinbelow:- “(III) Had Govind Dusadah sold/transferred the land of plot no. 474 area 9.5 decimals out of area 12 decimals on 12.2.1927? (IV) Had Munsi Dwarika Prasad @ Lal Dwarika Prasad sold/transferred through registered deed of sale no. 267 dated 02.03.1943 in favour of Sheikh Bhikhari Mian, his entire land which he had acquired in the year 1927 from the recorded raiyat ? (V) Had Bhikhari Mian continued in possession over the purchased land from Munshi Dwarika Lal in the year 1943 till the date 12.10.1976 ? 267 dated 02.03.1943 in favour of Sheikh Bhikhari Mian, his entire land which he had acquired in the year 1927 from the recorded raiyat ? (V) Had Bhikhari Mian continued in possession over the purchased land from Munshi Dwarika Lal in the year 1943 till the date 12.10.1976 ? (VI) Had Vikhari Mia executed a deed of registered gift no. 8331 dated 12.10.1976 in favour of Kanij Fatima Bibi, which had purchased from Munsi Dwarika Prasad in the year 1943?” 12. Learned Trial Court has discussed issue nos. III to VII simultaneously and recorded the findings that the plaintiff's have acquired right, title and interest over only 5 decimals of land in plot no. 474 on which house with boundary mentioned therein in the suit. 13. Appellant-defendant has filed Title Appeal No. 07 of 2009. The Appellate Court has also concurred with the findings of the Trial Court. 14. Learned counsel for the appellant has tired to assail the concurrent findings of both the Courts below on the basis that the judgment was allowed in part meaning thereby although the sale deed was for 9.5 decimals while title has been allowed only for 5 decimals of land of plot no. 474. 15. The above contention of the learned counsel for the appellant is not tenable in view of the fact that in the Title Suit, the case of the plaintiff was only for 5 decimals of land of plot no. 474. 16. In view of the above discussion made and concurrent findings of both the Courts below, this Court finds that no substantial question of law is involved in the present appeal and the same is hereby dismissed.