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2020 DIGILAW 23 (CHH)

Harvansh Singh v. Pratap Singh (dead) Through Legal Heirs

2020-01-06

SANJAY K.AGRAWAL

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JUDGMENT 1. Heard on admission and formulation of substantial question of law in the second appeal preferred by the plaintiff questioning the impugned judgment & decree by which the first appeal has been dismissed affirming the judgment & decree of the trial Court dismissing the suit. 2. Mr. Sumesh Bajaj, learned counsel appearing for the appellant herein/plaintiff, would submit that both the Courts below are absolutely unjustified in dismissing the suit of the plaintiff by recording a finding which is perverse to the record. The suit property being held by Amar Singh and the plaintiff being the grand-son of Amar Singh (being one of the daughter''s son) is entitled for 1/12 th share in the suit property. The suit has been dismissed by both the Courts below on the finding which is perverse to the record and which involves substantial question of law for determination. Mr. Bajaj relied upon the following decisions of the Supreme Court and this Court to buttress his submission: - 1. Man Singh (D) by L.Rs. v. Ram Kala (D) by L.Rs. and others, AIR 2011 SC 1542 . 2. Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127 . 3. Gannu alias Gaanu Ram and another v. Dhanmat Bai and others, AIR 2019 Chhattisgarh 148. 4. Akil Ram v. Sukhmen, AIRONLINE 2019 Chh 119. 3. I have considered the submissions made by learned counsel for the appellant and went through the record with utmost circumspection. 4. The suit property was originally held by Amar Singh who died in the year 1977 leaving behind his wife Chandan Devi, who also died in the year 1990, and three sons namely, Pratap Singh, Jogendar Singh & Guruvachan Singh - defendants in the suit and three daughters namely, Smt. Ram Kaur, Smt. Har Kaur & Smt. Harvansh Kaur. The plaintiff is son of Smt. Ram Kaur, daughter of Amar Singh & Chandan Devi. The plaintiff is son of Smt. Ram Kaur, daughter of Amar Singh & Chandan Devi. He filed suit that he is entitled for 1/12 th share in the suit property being one of the daughter''s son of Amar Singh & Chandan Devi which was resisted by the defendants who are sons of Amar Singh stating inter alia that Amar Singh in his lifetime partitioned the suit land and given partition to the plaintiff''s mother and as such, in view of earlier partition and allotment of share in land and house to the plaintiff''s mother, the plaintiff is not entitled for any share in the suit property. 5. The trial Court dismissed the suit holding that Amar Singh original holder and plaintiff''s grand-father, had already given share to the plaintiff''s mother Smt. Ram Kaur, as such, the plaintiff is not entitled for partition which was affirmed by the first appellate Court. The said finding has been assailed to be perverse and contrary to record. However, the plaintiff (PW-1) in his cross-examination in para 6 has clearly admitted that he is staying in the suit accommodation given by his maternal grand-father Amar Singh. He has also admitted that his maternal grand-father had given one and half acre land to his mother. Likewise, another witness Janakram (PW-2) has also admitted the fact of partition by Amar Singh amongst his sons and daughters during the lifetime of Amar Singh. 6. As such, the fact of partition and giving land and house in partition to the plaintiff''s mother is clearly admitted by the plaintiff himself in paras 6 & 7 of his evidence duly corroborated by another witness Janakram (PW-2) and the plaintiff is residing in the accommodation given by his maternal grand-father. Therefore, the finding recorded by the two Courts below that partition had already taken place during the lifetime of Amar Singh in which house and land were given to the plaintiff''s mother is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record. I do not find any substantial question of law for determination in this appeal. However, the decisions cited by Mr. Bajaj, learned counsel for the appellant, are clearly distinguishable on facts and not applicable to the facts of the present case. I do not find any substantial question of law for determination in this appeal. However, the decisions cited by Mr. Bajaj, learned counsel for the appellant, are clearly distinguishable on facts and not applicable to the facts of the present case. The appeal deserves to be and is accordingly dismissed at the admission stage itself without notice to the other side. No order as to cost(s).