IN THE HIGH COURT OF 3UDICATURE AT BILASPUR (c.<3.) Sfng?B Bench SECOND APPEAL No. f ^/ /2006 APPELLANT Plaintiff Kashiram, S/o. Dhanpat Chauhan Aged about 65 years R/o. Titurdih (Chauhan Ata Chakki) Durg, Tahsil & Dist. Durg (C.G.) VERSUS j:.^ N. RESPONDENTS defendants :1. Vishwanath, S/o. Dhanpat Chauhan €!il Aged about 78 years R/o. Vill. Urdoli, Tah. Salimpur Dist. Devariya (U.P.) At present Near Sahid Bhagat Singh Uchhatar Madhyamik School Titurdih, Tahsil and District Durg (C.G.) 2; Banarsi Lal, S/o.Dhanpat Chauhan Aged about 63 years, R/o. Near Sahid Bhagat Singh School, Titurdih, Tahsil and Dist. Durg (C.G.) Shankar Prasad S/o. Dhanpat Chauhan Aged about 60 years R/o. Near Sahid Bhagat Singh School, Titurdih, Tahsil and Dist. Durg (C.G.) 3, ^' // 2 // SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE ^) HIGH COURT OF CHHATTIS6ARH. BILASPUR SECOND APPEAL No. 131/2006 Kashiram Vs, Vishwanath and ortiers Appearance : Shri Hemant Sobpurkar, counsel for the appellant. ORAL OR&ER (22.6.2006) SUNrTL KUMAR SINHA. J. Heard on admission, (2) T1iis is the plaintiff's Second Appeal, filed under Section 100 of the Code of Civil Procedure. The plaintiff lost in both the Gourts, (3) The brief facts are that the pbintiff fiied a suit for declaration <xnd permanent injunction. The plaint allegations are that the suit lond. bearing (Oiasra No. 51/10, area 7 decimal and the house constructed over the same, are 1+ie properties of joint ownership and possession among the plaintiff and defendants, who are the real brothers. This land was purchased by the plaintiff on the name of defendont No.l, his elder brother, on 16.12.1974 through a registered sole-deed from one Kanti Bai Batliwal. The fur-ther allegations are that a house was jointly constructed over the sa\d propert/ out of the earnings of the ptaintiff and defendant No.l. The plaintiff claims 1+iat the aforesaid transaction was a Benami •^ - ^- transaction and he is the actual owner of the lond and both the brothers are the Joint owners of the house, situated on it The defendants denied the claims of the plaintiff and pteaded that in fact, defenckint No.l is the absolute owner of the property and he had purchased the aforesaid land from its owner namely" Kanti Bai out of his own earnings. He also pleaded that the house was also built by him. (4) The learned trial Court dismissed the suit holding that it was not proved that the suit land was purchased by the plaintiff on the name of defendant No.l and the suit house was built out of the eamings of 1+ie joint property among the 2 brol+iers. Thereafter, the plaintiff filed an appeal before the lower appellate Court. The lower appellant Court also took the similar view <and dismissed his appeal, confirming the judgment and decree passed by the trial Court. It is against this judgment and decree, the plaintiff has filed this Second Appeal, (5) Leamed counsel for the appellant argues that the findin9S in relation to Benami transaction ond also in relation to the funds for construction of the house over the suit land are not in accordance with taw. (6) I have gone through the records of the 2 Courts below and have also perused the evidence led by 1+ie parties. (7) The trial Court, under reply to issue Nos, 1 and 2 has recorded its findings on the basis of positive evidence available on record. The trial Court has relied on ^ie evidence of the plaintiff himself, fss'" ..- 3- especiaily on para 18, jn which he hois admifted -ttiat all the brothers were living separately since the year 1954-55 and their mess were also separate. Further, the ancestral property in the village in Utl-ar Pradesh was also partitioned between them. In these circumstances, the trial Court held that there was no reason with the plaintiff to purchase the bnd on the name of defendant No.l. The trial Court also observed that there are variations in the pleadings ond the Court statement of the plaintiff in relation to moymgmg funds by the 2 brothers for construction of the hou^; on the said land and on all these grounds, the above findings have been recorded. CT) There is no perversity in the fjndin9s recorded by the 2 Courts below. I am not inclined to interfere with the concurrent findings recorded by the 2 Courts below in this re9ard- The appeal has no merit. The same is disniissed at the motion stage itself. Sd/- Sunil Kumar Sinha Judge sunita