1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Ashok Kumar Vs. Nemi Chand & Another (S.B. Civil Second Appeal No.146/2009) DATE OF JUDGMENT : July 17, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. O.P. Boob for the appellant. BY THE COURT : In this second appeal filed under Section 100, C.P.C., plaintiff-appellant is challenging the concurrent finding of the trial Court as well as lower appellate Court, whereby, suit filed by the appellant-plaintiff for permanent injunction was rejected and judgment and decree passed by the trial Court was upheld by the first appellate Court. According to facts, suit was filed by the appellant- plaintiff with the pleadings that he is residing in the property situated at I-B Road, Sardarpura bearing plot No.167, for which, patta was issued in favour of the father of the plaintiff and both the respondents. Further, it is stated that after the death of their father 2 an oral partition was arrived at on 14.01.1994, under which, all the three persons including plaintiff and both the defendants got their share and partition was made by which 19 ft X 57 ft land came to the share of each of them. Further it is pleaded in the plaint that he is in possession of his share and respondent-defendants are forcibly evicting him from his share in the property, in which, is is in possession. The trial Court, after adjudication of four issues framed in the dispute, held that no oral partition was made earlier and property in question is joint property of the family. This is a finding of fact recorded after appreciation of the evidence coming on record. Further, it is observed that the plaintiff-appellant has not proved his possession and title over the plot, therefore, no question of granting decree in favour of the plaintiff for permanent injunction arises. The trial Court vide its judgment dated 23.05.2007 while deciding the matter finally dismissed the suit and gave clear finding that plaintiff has not proved by cogent evidence that any oral partition took place in the year 1994 when his father was alive. The finding of fact arrived at by the trial Court as well as appellate Court does not require any interference. 3 The learned trial Court has categorically held that property in question is joint family property and appellant-plaintiff has failed to prove before the Court that he is in possession of share in the property from which the defendant-respondents are forcibly evicting him. In my opinion, the finding of fact cannot be interfered with because the learned trial Court has observed in the judgment that property in question is joint property of the family, therefore, for getting the share still the appellant-plaintiff can claim his right for his share but he cannot claim any share on the basis of so-called oral partition which is alleged to have been made during the life-time of his father late Banshi Lal. In this view of the matter, in my opinion, no substantial question of law arises in this appeal for consideration. There is thus no force in this second appeal. This second appeal is accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.