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2021 DIGILAW 1150 (RAJ)

Ramesh Chand v. Jitendra

2021-07-15

ARUN BHANSALI

body2021
JUDGMENT 1. This second appeal is directed against the judgments & decree dated 15.05.2017 passed by the Civil Judge, Sagwada, District Dungarpur and 14.11.2018 passed by the Additional District Judge, Sagwada, District Dungarpur, whereby the suit filed by the respondent-plaintiff Jitendra was decreed and the first appeal filed by the appellants has been dismissed, respectively. 2. The suit was filed by the plaintiff, inter-alia, with the submissions that the plaintiff and defendant No.1 are brothers and had jointly purchased abadi land ad measuring 50' x50' by a registered sale deed dated 09.07.1999, boundaries whereof were indicated in para 1 of the plaint. It was claimed that half portion of the plot was lying vacant, which was indicated in the map filed with the plaint. It was alleged that the defendant was attempting to take possession of the said plot and therefore, he be restrained from doing so and it be declared that the said vacant plot belongs to the plaintiff. 3. Written statement was filed by the defendant with the submission that the plot was purchased by the defendant No.1 from his own income and only because the plaintiff was the younger brother, his name was indicated in the sale deed; the plaintiff neither has been in possession nor has any right over the said plot. The plaintiff himself has executed an agreement dated 08.07.2007, in which he has agreed to relinquish his right for a sum of Rs.61,000/-, which amount has been paid. It was prayed that the suit be dismissed. 4. The plaintiff filed replication and denied execution of the agreement and receipt of any amount. 5. Based on the pleadings of the parties, the trial court framed five issues. 6. On behalf of the plaintiff, he himself was examined and exhibited 04 documents. 7. On behalf of the defendants, defendant No.1 was examined and he exhibited 24 documents. 8. The trial court by its order dated 20.09.2016 held the document dated 08.07.2007, inadmissible in evidence. 9. After hearing the parties, the trial court came to the conclusion that admittedly, the name of the plaintiff was indicated in the sale deed and that half plot was lying vacant and as such, it was found that the plaintiff was entitled to decree of declaration and permanent injunction. 10. Feeling aggrieved, the appellants filed first appeal. 11. 9. After hearing the parties, the trial court came to the conclusion that admittedly, the name of the plaintiff was indicated in the sale deed and that half plot was lying vacant and as such, it was found that the plaintiff was entitled to decree of declaration and permanent injunction. 10. Feeling aggrieved, the appellants filed first appeal. 11. The first appellate court, after hearing the parties, again decided all the issues and after exhaustive discussion reiterated the findings recorded by the trial court and dismissed the appeal. 12. Learned counsel for the appellants made submissions that the two courts below were not justified in decreeing the suit and dismissing the appeal. It was attempted to be emphasized that from the document dated 08.07.2007, it was apparent that the said document was a family settlement, which clearly established that the plaintiff had no right in the suit property. The trial court was not justified in coming to the conclusion that the document in question was inadmissible in evidence and as such, the said aspect gives rise to a substantial question of law. 13. Submissions were made that there was no material available on record of the case to indicate that the plaintiff except for his name in the sale deed had any right in the property as he had not at all contributed qua the plot in question and as such, factually also, the findings of the two courts below are perverse and give rise to a substantial question of law. 14. Reliance was placed on K.G. Shivalingappa v. G.S. Eswarappa & Ors. : AIR 2004 SC 4130 and Sita Ram Bhama v. Ramvatar Bhama : AIR 2018 SC 3057 . 15. Learned counsel for the respondent supported the judgments impugned. 16. It was submitted that from the evidence available on record, it was firmly established that the plaintiff had half share in the suit property and that besides the fact that the plaintiff had denied execution of the document dated 08.07.2007, the same was rightly held inadmissible in evidence by the trial court and as such, the findings of two courts below do not give rise to any substantial question of law. 17. 17. Submissions have been made that the findings recorded by the two courts below are findings of fact and as such, they do not give rise to any substantial question of law and therefore, the appeal deserves to be dismissed. 18. I have considered the submissions made by learned counsel for the parties and have perused the judgments of the two courts below as well as the record of both the courts below. 19. The suit, as noticed above, was filed by the plaintiff based on the sale deed dated 09.07.1999 qua the suit plot, wherein admittedly the plaintiff has been shown as a joint owner of the suit property. The appellants raised two fold defenses, (i)- name of the plaintiff was got included as he was younger brother though he had not contributed anything qua the plot in question and (ii)- in the same breath, reliance was placed on a so-called family settlement dated 08.07.2007 to indicate that by the said document they have partitioned the property, wherein the property in question came to defendant's share. 20. There is an obvious contradiction in the stand taken by the defendant as on the one hand, it is claimed that the plaintiff had no share in the property and on the other hand, a partition of the said property is claimed. 21. The document in question is written on a plain piece of paper, the same bears signatures purportedly that of the plaintiff & appellant No.1 and of certain other persons. Though reference has been made regarding certain properties belonging to three brothers and mother, however, the document purportedly bears signatures, as noticed herein-before, of two brothers only. 22. Whatever value can be given to the said document, the same indeed is a document of partition. The trial court rightly came to the conclusion that the same was inadmissible in evidence. 23. Reliance placed by learned counsel for the appellants on judgment in the case of Sita Ram Bhama (supra) and K.G. Shivalingappa (supra) to claim that the document in question was admissible in evidence, has no substance, inasmuch as, in the case of Shivalingappa (supra), the court came to the conclusion that besides the unregistered partition deed, there was sufficient evidence available on record to indicate the partition of the property and that the respective branches were enjoying the property and its usufruct. The aspect of deed not requiring registration, was not the subject matter. 24. Similarly, in the case of Sita Ram (supra), the court based on provisions of the Stamp Act as well as Registration Act, in-fact, held that for lack of stamp duty even the document could not be used for collateral purposes and if the stamp duty is paid, the same can be used for collateral purposes, even if the same is not registered. However, in the present case, as the property was purchased jointly by two purchasers, the same could not be partitioned and the share of one purchaser could only be transferred by him to another by way of a registered relinquishment deed only. 25. Further as the document dated 08.07.2007 purportedly partitioned the suit property and made reference to certain other properties also, the same was rightly held inadmissible in evidence by the two courts below as the same was neither registered nor stamped. 26. Further the two courts below after analyzing the evidence, which came on record, was fully justified in conning to a concurrent conclusion that the name of the plaintiff in the sale deed was not indicated merely because he was brother of the defendant, as claimed by the defendant and that evidence clearly indicated the plaintiff's contribution in the property. 27. Learned counsel for the appellants failed to point out any perversity in the findings of the two courts below in this regard, so as to give rise to any substantial question of law. 28. In view of the above, the appeal filed by the appellants do not give rise to any substantial question of law. There is no substance in the appeal, the same is, therefore, dismissed.