slstgsisti IN THE HtGH COURT OF CHHATr GARH AT BILASPUR S^OND APPEAL NO.24^ Q007 •^"i <-/ / APPEU-AWTS (Pl^intiffs) ^ ^ 2) ^^?i^y -v-''"':^^'e:s^~ ^ ^^^^'" ,««Sl"- -.-¥ Ch^- Tteiwar S/o.- GanpatMahar, Aged about 65 y^ws, Tukaram Agedabout62 years Snrt. PhooKaira«®rBai W/o.- Rama Mahar, Alf Wo Village- Kumarra, Patwari Hafta (fo. S7,Chhur^i TeteB and Distriet Rajandgaon (C.G.) VERSUS Respondents 1) Manhor, S/o.-Mehatar R/o. - Vilfage Kumarra, Chhuriya, TehsB and fc>-' yS.5 r^) pt S^teOfChhattisgarh ^L<^ . - (y^ ~ ^j^'Throygh:-Coffector ;^4^ i ^ ("^^ Rajnandgaon (C.G.) ^ .> ^ ^^ (^^\0 3^ ^ HemantKunrar S/o.- Manhor, Aged about 28 years, Rto.- ^lfage Kummara, Patwari Hallca No. 67,. Chhuriya Tehsil and Dretrfct Rajane^aon (C.G.) ^—rr^Ji^ <^ <ft->3<^ wm o o i> \~0 1"0 |m 1> om •ja M |m 10 o•o o ' ..'^.^^"^^S^SSSW^ r^ HIGH CQURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble^hrLJystice PrashantKumaiLlVlishra Second Appeal No.247 of 2007 Thanwar and others versus Manhor and others ORDER Postfor 15-7-2010 Sd/- Prashant Kumar Mishra Judge n HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'bie^ShrUustice Prashant Kumar Mishra Second Appeal No.247 of 2007 Appellants Respondents versus Thanwar and others Manhor and others \\ \ T 1 Present: Shri Anoop Majumdar, counsel for the appellants. Shri Pramod Verma, Senior Advocate with Shri Raghvendra Verma, counsel for respondents No.1 and 3. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondent No.2. Se^CQnd Appeal under Section 100oftheCode of Civil Procedure, 1908 ORDER (Passed on i^July, 2010) This is plaintiffs' second appeal under Section 100 of the Code of Civil Procedure, 1908. Their suit for declaration of exclusive title over the suit property and for a declaration that the Will executed by Parvatibai in favour of defendant No.1 Manhor be declared illegal and void, has been dismissed by the two Courts below. 2. Plaintiffs' case, in short, was that their grand father Ramchand and his brother Mahangiya had 15-16 acres of land. After de^th of Mahangiya, his wife Parvatibai (deceased defendant No.1) started residing with Ramchand and their names were jointly recorded in the revenue records. After death of Ramchand, name of his son Ganpat came to be recorded jointly with Parvatibai on 8.47 acres of land. It '^ % • ^ 2- ^; '«,-' was further stated in the plaint that Ramchand and Mahangiya had already partitioned the lands between them and were in separate cultivating possession and the plaintiffs' father Ganpat has also effected partition between his three sons and one daughter. Mehattar Mahar, father of defendant No.1 Manhor, was one of the sons of Ganpat. Mehattar's share was sold for his treatment. 3. It was further stated by the plaintiffs that Parvatibai had sold her share of land during her lifetime and as such she had no interest or title left in the suit property, however, the plaintiffs and their father Ganpat agreed to give 4 acres of land to Parvatibai for her livelihood during her lifetime. The defendant No.1 prevailed upon the deceased Parvatibai and influenced her to execute a Will in his favour and to execute a sale-deed in favour of his son Hemant. 4. The defendants admitted this fact that there was a partition between Ramchand and Mahangiya, however, the plaintiffs' assertion that Mehattar sold his share was denied. On the contrary, it was pleaded that Ganpat had sold his share for the marriage of plaintiffs No.2 and 3 and for repayment of bank loan. The sale-deed executed byParvatibai in favour of Hemant and the Will executed by Parvatibai in favour of defendant No.1 was claimed to be a genuine and lawful documentation. 5. The defendants filed a counter claim to plead that out of 11.07 acres jointly owned by Ganpat and Parvatibai, % share belonged to ''^, Ganpat on which Mehattar would inherit 1 share along with his other s. brothers and sister viz. the plaintiffs and, thus, the defendant No.1 claimed 5/16 share of the said 11.07 acres of land. 6. The plaintiffs objected to the counter claim by saying that Parvatibai had already sold her entire share in the property and merely because her name was entered in the revenue records, Parvatibai had not acquired any title and that the defendant No.1 is not entitled to claim any share in the suit land by way of counter claim. 7. The trial Court, vide its judgment and decree dated 31-12-2005, dismissed the suit after holding that the Will dated 23-8-1993 (Ex.D-2) executed by Parvatibai is proved from the evidence of Janglu (DW-2, attesting witness) and Patiram (DW-3). The trial Court also found that it is not proved that Ganpat had effected partition amongst his sons and daughter. The sale-deed dated 6-4-1990 (Ex. D-1) was also found to be proved on the ground that Ganpat himself had also signed on the sale-deed. The trial Court has also considered Ex. P-3, wherein Ganpat had agreed to the mutation in the name of Hemant to whom Parvatibai had sold the land and also that after execution of the sale- deed, Ganpat did not raise any objection in spite of the fact that he was alive for a period of 10 years after the sale-deed, in which he had signed as one of the sellers. The trial Court also found that plaintiffs' case of a partition by Ganpat amongst-his sons and daughter is not proved and similarly it is also not proved that Mehattar had sold his share of land for his treatment and for marriage of his son Manhor, the \ defendant No.1. The trial Court ultimately dismissed the suit and ''a'ecreed the counter claim by holding that defendant No.1 Manhor, who fjWKf^ r^ 4 is son of Mehattar, who, in turn, was one of the three sons and one daughter of Ganpat, is entitled to 1/4 share from Ganpat's share. 8. The first appellate Court, by the impugned judgment and decree, has affirmed all the material findings recorded by the trial Court and dismissed the appeal. 9. Thus, in view of the findings recorded by the two Courts below, it would be clear that the fact as to there was no partition between the three sons and one daughter of Ganpat is pure finding of fact. Similarly, due execution of the WILL (Ex.D-2) and the sale-deed (Ex.D- 1) is also a finding of fact and the appellants have not been able to point out any defect in approach bythe two Courts below or that the findings are perverse. The appellate Court was also of the view that it was for the plaintiffs to prove that the suit land did not belong to Parvatibai, but they are the exclusive title-holder of the land, however, the plaintiffs have failed to prove this fact by any clinching evidence. It is not disputed that the holdings were joint and the oral evidence regarding partition between the sons and daughter of Ganpat have been found to be shaky. Further, in the absence of any evidence on record as to which particular land was granted to Parvatibai for her livelihood, the Courts below have found this plea of the plaintiffs to be not proved. 10. Thus, the findings recorded by the Courts below are entirely in the realm of appreciation of evidence. It is settled law that findings arrived at concurrently by two Courts below on appreciation of the evidence available on record cannot be unsettled in second appeal ?\ r 5 ^ under Section 100 of the Code of Civil Procedure, 1908. In State Bank of India and others vs. S.N.Goyal, (2008) 8 SCC 92, in paragraph 13 ofthe report, the Hon'ble Supreme Court has laid down the principle as to what is a substantial question of law. Applying the said principle in the present case, this Court is of the opinion that the appellants have not been able to point out any substantial question of law arising for determination in this appeal. 11. Consequently, the second appeal fails and is hereby dismissed at the admission stage itself. _—- Sd7- / Prashant Kumar Mishra / Judge Gopal 1