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2023 DIGILAW 138 (RAJ)

Ghanshyam Das Sharma v. Sawayam Prakash Sharma

2023-01-11

NARENDRA SINGH DHADDHA

body2023
ORDER 1. The appellants-plaintiffs (for short 'the plaintiffs') have filed the Civil First Appeal challenging the judgment and decree dated 05.12.2003 passed by Additional District Judge (Fast Track) No.2, Alwar in Civil Suit No.169/2003 (123/2000) whereby suit filed by the plaintiffs has been dismissed. 2. Brief facts of the present case are that the plaintiffs filed a civil suit for partition of Plot No.177 situated at Scheme No.1 Arya Nagar, Alwar which was purchased by late Shri Ram Prasad and sale deed of the above mentioned plot was executed by the U.I.T. in favour of late Shri Ram Prasad. Measurement of the plot was 50 ft. East to West and 70 ft. from North to South. Late Shri Ram Prasad has constructed house over the said plot. As per the contention of the plaintiffs, the plaintiffs and respondentdefendant (for short 'the defendant') are equally entitled to get share in the house in question. 3. A written statement was filed by the defendant and it was stated that a family settlement was executed by late Shri Ram Prasad on 29.05.1965. The defendant clearly stated that constructed area is measuring 23 X 40 ft. In the North side, two rooms are in the share of late Shri Madan Mohan, two rooms came in the share of defendant and rest of the back portion in the plot was kept by late Shri Ram Prasad for his personal use. Thereafter, a family settlement was executed by late Shri Ram Prasad in June 1976 for back portion of the house and settled back portion of land and ornaments were given to late Shri Madan Mohan Sharma against the 3 1/2 ft. excess land, staircase and gallery. 4. Trial court had framed the following issues:- (i) Whether property mentioned in the para 3 of the suit was constructed by Ram Prasad during the life time of late Shri Madan Mohan Sharma with the help of plaintiffs and defendant. (ii) Whether disputed property is undivided and plaintiffs as well as defendant have equal share therein. (iii) Whether plaintiffs are entitle to get decree of permanent injunction in their favour. (iv) Relief. 5. To prove the plaint, plaintiffs examined PW1-Savitri Devi and PW2- Ghanshyam Das and exhibited the map as Ex.1. (ii) Whether disputed property is undivided and plaintiffs as well as defendant have equal share therein. (iii) Whether plaintiffs are entitle to get decree of permanent injunction in their favour. (iv) Relief. 5. To prove the plaint, plaintiffs examined PW1-Savitri Devi and PW2- Ghanshyam Das and exhibited the map as Ex.1. Defendant examined himself as DW1 witness and got examined , DW2-Ramsharan Sharma, DW3-Bhagwan Singh, DW4-Bhupendra Kumar and exhibited the documents of settlement Ex.A1, information regarding determination of land building tax Ex.A2 copy of the application Ex.A3 and information regarding determination of land building tax as Ex.A4. 6. After hearing the parties, trial court has dismissed the plaintiffs' suit. 7. Learned counsel for the plaintiffs submitted that judgment passed by the trial court is not legally sustainable because copy of the family settlement has not been filed by the defendant. Learned counsel for the plaintiffs also submitted that it is admitted position that no partition took place, so, it was mandatory for the trial court to order for partition of the suit property by metes and bounds. Learned counsel for the plaintiffs also submitted that trial court wrongly came to the conclusion that disputed property was partitioned and wrongly decided the issue No.2 in favour of the defendant and against the plaintiffs. So, order of the trial court be set aside. 8. Learned counsel for the plaintiffs has placed reliance upon the following judgments : (1) Vineeta Sharma Vs. Rakesh Sharma & Ors. reported in 2020 (9) SCC 1 ; (2) Rapolu Yadagiri Vs. Smt. Rapolu Lakshmamma & Ors. reported in 2003 SCC Online AP 42 and (3) K. Arumuga Velaiah Vs. P. R. Ramasamy & Anr. reported in (2022) 3 SCC 757 . 9. Learned counsel for the defendant has opposed the arguments advanced by learned counsel for the plaintiffs and submitted that trial court rightly came to the conclusion that partition took place in the life time of late Shri Ram Prasad. Learned counsel for the defendant also submitted that during the evidence, family settlement Ex.A1 was exhibited. There is no need for its registration. Learned counsel for the defendant also submitted that as per family settlement, plaintiffs and defendant are residing and they had taken the electricity connection according to their portion. Learned counsel for the defendant also submitted that during the evidence, family settlement Ex.A1 was exhibited. There is no need for its registration. Learned counsel for the defendant also submitted that as per family settlement, plaintiffs and defendant are residing and they had taken the electricity connection according to their portion. Learned counsel for the defendant also submitted that as per family settlement, the suit property was transferred by the Nagar Parishad, Alwar in the name of defendant. So, trial court rightly dismissed the suit filed by the plaintiffs. So, appeal being devoid of merit is liable to be dismissed. 10. I have considered the arguments advanced by learned counsel for the plaintiffs as well as learned counsel for the respondent(s). 11. During the trial, defendant has exhibited the family settlement Ex.A1 and proved it. As per the family settlement, plaintiffs and defendant are residing in their respective portion. The suit property was transferred in the name of the defendant as per the family settlement. So, in my considered opinion, trial court has rightly came to the conclusion that disputed property was partition in the life time of Ram Prasad. So, present appeal being devoid of merit is liable to be dismissed. 12. Therefore, the Civil First Appeal stands dismissed.