CW? ;N THE HLQgmCOURT OF JpDICATQWE AT VBILASPURVIV- SECOND APPEAL No. __L%_J____x2004 f/ANELLANT APPELLANT (in mst appeal) / wars, Munshimm, 0ccupation-Agriculturist, Si’o M angal Sinéh, aged Rx’o 40 I 3‘ FLA XNTIFF Viilage-Hargaou, Tahsil Saja, District Burg (C,G.) VERSUS‘ RESPON’DENTS : l. Inder Singh, Sio M angal Singh. j fR/ESPCFNDENTS (in first appeal) (x aged 45 y'ears, Rio Wétd NoTQ; / DEFENDANTS Punjabi Para, Bemstam, District V ‘ Durg (C.G.). Dhananjay $ingh, Sio Anjor Singh. aged 35. years,‘ Occupation- Agricultun'st, Rm Village Padumsara, Tahsil Bememra. District Drug ((lG.) Vikas Kumar, Sfo M astram, aged 23 years, Rio Khariar Road, Cir) Hausa ofRampyari Chawla, Patel Nagar Bara, Khariar Road. District Kalahandi (Orissa) ‘K ‘ Smt. Surjit Kaur, Widow Mrwtram, agerLabout 40 years, R/o Khariar Road, Cfo Huuse of Rampyari Chawla, Patel Nagar 3am, Khariar Road, District v V ‘ Kalahandi (Orissa) ' r j. Smt. Shobha Devi, W/o Rawatmal Lodha, aged 37 years, House Na. 33-A, Jokhanbag, Jhansi, District Ihansi (U.P.) 6, Smt. Sunita Gumbar, W10 Shrimm Ward No. Gumbar. 4, Bemetara, aged 26 Dis'trictb vears Durg (C.G.) Valuation 0f agneal : Rs. 30E. [As in Courts helowl Court fee airl : Rs. 30?? As in Courts below wp QECOND APPEAL UNDER SECTION 1150 OF THE CODE OF CIVIL PRUCEDURE ; ’ *‘H £L§§? a? WWW §iL§§§t§ §i?gie Eémé§T= §=§3rf§3§a 5"m‘i Juyi‘ice E$‘a%fém§ra iv‘iigWa H $emrié %§§§ai 5% $1 Gé Egaé appeiiarai :- atiunshiram V5 gig m$Qg§?$w a la §i3a§w m§gii $1 waiégsa ug A§pe§iani by Shr§ Neeraj Shrivastava, Ac§vecata ‘ J i} N '§' {Egiivgrgd Qn O9 JQ3I2$§§§ Heard m1 admissian. i “Fhis §$ ihé géccm wpeal agaimirthe judgéméni am‘ decree da‘ted ii? Gcmber $063 pas$ed by 1mg: Addmnai Isirlct Jucige H- I i Bemeiara and by whach the appeal Qf the appeHant was mgmisged and Judgement and decree data 1 (1" 1 9 nagse CM! Jgdge G3a5§=L Bematara, has began csn‘im‘ad ”a???“ har “Ear sha§¥ w de5cr§§s$é a» ger héir ée3§3r§§széga m thk :rgji Cisuri‘f; M. 3. The gndisw‘ied fad: is that ihg glaintiff, defendant H01 aw iate Ma§tram wara real brothem Wheraa$ dafigndant NQZ: is the 5m and dacendant Nan-4 i$ the ‘ :w‘dxe-w 9:? Maswam, Tha p!aint!ff fuec! a Sig: far é§c§arat3sa 1:3: 1.}.3" ghare aad sagag‘ate wagsgia} a? *e Em aescribecé m 3w aux? g asweméga‘ Mb ih$ pigmi. 'i‘hé era§ par%§%§ar§ a‘f téw armégtrai wwéi‘éy £36k Waité bétWém? fhe membér§ 0f %§1e famiiy (m 1f3.£3zi.‘i§?6. Thé :Jropert’y’ éeswibed m $ci‘1aduie-5 was gaurc§1a$eci by ihe piainti‘ff‘ and hi$ twe brothem 0n G7,m.1‘§64 by a registerea‘ sale d$$d. ‘Thgre wa§ a di$puta betwgen Ma$tram and glaintiff regarding :he 54mg 4n Jélmga a -; dw h of Mag _==m gné 9f m “am hcwwer, *‘e arzwa _ 6§ev5 wach is aibseqaéaiw aaqww vwem, swam? xr gémé‘isfa. Burg maa cammuau Lu mi a wint préijbry ancé ascarfsmgay, iné gii‘wér‘ty cemmueé is iéé récardw 10mm m ma name of twee brothers and tneir mether Sm: Kai r EevS r b). v m the revemé records. However“, when me piaintiff waé in jail in ccmnection with murder cf Mastram, defendant No,1 Inder Singh transferrgd the above praperty to defendant N012 by a registered sale deed on 3rd July 1982. Ihe plaintiff came d3 that as in the suit plot, the plaintiff, defendant No.1 and deceased Mas‘rr' m each had 1/3” share, the saie deed executed in favour of defendant Ne.2 s Mega! and he: b§nding en the piainiiff. On we pieading, a prayer fer deciar tien and separate passessien that the plaintiff is entitied for if.) share was ought and pieaded that possession of defendant No. 2 in the remaining 2‘3” ehare is iiiegai and further mesne profit at the rate ef Rs.10t)/- monthiy from the date 9f institution of suit tilt the delivery ef passessicn wee prayed. u“ . Defendant Nos. 1, 3 and 4 in their joint written statement denied the averm‘ents cf the plaint except the admitted facts. The case of defendant Nos. 1‘, 3 an 4 {Mae that initially the plaintiff and his brothers were residing jeintiy, hewever, the plaintiff and deceaeed Mastram separated defendant Net inder 8ingh by allottingthe ehep, house and plot, eituated in Bemetara and the suit tend and the plaintiff and deceased Mastram were given reet of the nroperty' of the fdrniiy situated in four villages including the house, courtyard and badi etc situated in Village Hatgaon and on this properties, defendant No.1 inder Singh was not given any share. Accordingly, the suit lands mutated in the name of defendant No.1, Were subsequently iegally sold by him through a registered sale deed te defendant No.2. Defendant No.2 sold this property texDrIawri who is in possession of the said property. 5. ‘The defence of the defendant No.2 was that defendant No.1 was the owner of the suit property which he purchased and obtained possession for a full consideration of Rs.49,0GGI-=. Apart from the written statement, defendant Nos. 1, 3 and 4 filed a counterclaim claiming that defendant No.3 and 4 are entitied for 11% share over the prooerty described in paragraph 12 of the olaint and further that they are the owners of the property described in paragraph-eta.) which has been iliegally enoroaohed by the plaintiff. Accordingly, a deoree for declaration of Vz‘ l paragraph-13 was prayed. ‘r l a in reply to the counterclaim, the plaintiff stated that the property situated in village Roudra was allotted in his share in the family partition and sinoe then, he i5 in §QSSeSSiQfL aid Lt. shareg and possession over the property described in paragraph-593i} and in ~ .-\ x that, an the basis of the pleadings of the parties, iesues were framed by ?. the tri 3 Caurt and the suit of the plaintiff wae dismissed by recording a ending , that th suit property is net the joint property ef the plaintiff, defendant No.1 and Mastram and the piaintiff is. not entitied for separate poseession after partitien of hi3” share ef the suit property and further that the piaintiff has faiied to preve that the eaie deed dated 02011952 executed In favour of defendant No.2 by defen ant Nari was unauthorized and that the sate deed ts binding on the ‘piainti aieo. it was aiso heid that defendant No.2 purchased the property banafi eiy after verification of the titie by paying due consideration and the titie of \‘rdefendant‘ No.2 is protected as per provisions of Section 41 of Transfer of Propet‘t? fist (hereinafter referred to as ‘Aotj and that of defendant Nos. 5 e 5. The counteroiaim preferred by defendant Nos. 1, 3 and 4 was aiso held to be not provecti and accordingly, the suit was dismissed» l 8. ‘Learned trial Court dismiesed the suit of the plaintiff on the ground that the case of the plaintiff is that there was oral partition on 1B.04.1578 of the ancestrai propejty‘. continued to However. he joint the property suit property and he was was not. paying inciuded iand in revenues the partition of the and suit it propetty before 1981.~ However, no iegally admissible document has been fiied by the piaintiff and he came to know about the sale of the suit property only in the year £1984~85t The plaintiff has admitted the mutation proeeedings conducted oefore Tehsildar, saja and in the Statement of EX.D!1, the plaintiff has stated that there as a partition between the brothers some ten years before and according to that partition, the [and situated in villages, Ghotmarra, Roudra and Hatgaon o admeasuring 15 to 1% acres of land, was ailotted to his share whereas deceased iviastram was also allotted the land situated in village Ghotmarra, Bhedni and it Hatgabn and defendant No.1 lnder Singh was given the shop, plot and house situated in Bemetara. The ptaintiff has further admitted that he has applied for mutation for the land allotted to his share. An agreement of partition was executed in the year 19m in whioh all the three brothers has signed in presence of withesses namely Sant Singh Kartar Singh and mother Smt. Kartar Devi. He also a‘dmitted that he has given a document for tiling in the Court to his Advocate Howe:ver no such document has been filed by the plaintiff in the Court and thus the Court below on the basrs of statement of the plaintiff and further for not fling any oooument has drawn adverse inference against the plaintiff that had he filed thosedocuments, it would have adversely affected the ease of the plaintiff. J g I s. Cm me ofher hand, the deféndants and their witt1e$ses haw sfated mat arai p rt'iticn tcok piace in the presence of witnesses namely Atma Ram, Seeta' Ram, Kartar Singh, mother Kartar Devi and Sant Singh, Learned trial Court v relying upon the oral etatements cf the witnesses 0f the defendants and further relying upon the statement ef DW1 lncler Singh who is also supeened by decum rit of x DH and which is aieo eupportecl by tne statement ef D W 2 Aiira Rarr %O years old, has arrived to the canciusten that there was an oral partition m the ear 1976 of the suit property and the suit land was allotted to the share of defen ant No 1 A presumption has been further drawn by the trial Ceurt against the plamtn‘f fer not fling agreement of partmon which was In hrs possession on the hds‘ls of which the mutatlon arder ef Ex: D112 was passed ln favour of defendant Ne. 1 of the sutt land. l Lear‘hed trial Cdurt has further held that the suit property was the property of thel share of defendant No.1 lnder singh and he authorized the same to defendant No2 and that defendant No.2 after dee verification and due care purchased the suit property bonafdely from detendant Ne 1 the owner of the suit _ propety as before purchasing the property Defendant No 4 had issued a public notmcatlon on 23m June 1982 In “Daily Navbharat" lnVItIng objections against the proposed sale and when no objections were received, he purchased the same by a registered sale deed. For the above reasons, the learned trial Coutt has arrived to the conclusion that defendant No.1 wae entitledn‘or protestion of Sectior‘i 41 of Act. Aecordingty, the suit of the piaintiff was dismissed by the trial Court. l l l 11. iLearned frst Appellate Court agieeing With the fndings of the learned trial Court dismissed the suit of the plaintiff on the ground that the piaintn‘f has faded to prove that the suit land was not subjected to partition though the other properties were duly partitioned amongst the hrothers of the plaintiff in the year 1976. l 12. lThat, the learned oounsel for the appellant has assailed the judgement, and holdings of both the Courts below on the ground that learned Additional Districtg Judge, Bemetara has loonfirmed the findings of the trial Court without discussing the evidence available. on records simply by mentioning in paragraph— 11 and 12 of the impugned judgment that he is in agreement with the findings of the Chrtil Judge as the same are not baseless and no further discussion on the statements of witnesses is required in the appeal. l i i i V . rngd counsel fr the aellnt submits that the first Appellate (hurt is a final 0 facts nd withaut discussing the fact the judgment cf tha tl la Ct hds be m’r sm ejudlc amm‘f s *t‘g st sur en camed caug great pre ta the pl Thu fr Aépt aulu m y rcasm jurisdlctm m mdmg t ella Cam-t has fé propefl exeg the de he' appeal ' rraining itlf from appreciatio of evidence. The other round taken by he ellant is that he findin of both he Courts below that the plaintiff hs failed to de evince to establish that te suit property was not pattitinad is uniustifie. lt is fur ard that e Ceurts ef a haue rawn deerse w fnc at t taintiff r t fling agment of partition entered inte n . pare he year 1976 and at the same on he be of nt of din h so docume EX.DI12, a fing haa been recorded tat there was me t agreemnt etween the paies on the baee of which, the euit property was recorde in :the na‘ of defendant No.1 and thus, both the findinge are hduc de h o d rthe gue th tw d a 7M ’inetee gams i‘e p fo no ree oetwee the tie in t time t sts e b rt i e me tadiory in terms. 1Z1. I ave heard learned counsel for the ppellant at iength. i l h f st ot oe at r um av o the deei’e paseed y earned ria ourt appears to be fallaetous After gog ugh he me of the tl Cour the fret Appellate Court ared t the concln at he reasog of tl ourt for ssg he s of he plf ased o proper apprean of the eenoe and further rerag the sam agume in the app’eitate judgemnt is of no consequence, as has 'een hel‘ by the Supreme Court i the matter of ’‘ reported i - Lened ounsel for t apllan could not cit any judgment in support f h contenion. 1e Te indings f both th ourts below that the plaintiff has failed to prov that the uit roperty was nt partitioned and remained joint property of the hre bhe b pr he ce hw a nt t p r ret rd h as conrdt l h a “’te. Te contention o the appellant that the fir pet wttheet aopreoiing the evidence avattahte on reoe‘d tn eetait. oo not he eonfttrne e b t tt E in tmo t judgnt ria t riv o i usio th t nin the ria C dimtsm t uit t aintif is b n citio vrd eittin l rotrsl‘ is ased on sound apeciation of t eviden available on record. So tar as te ntention of the plaintiff that both t learned Curts below have illegally ran dverse presumptioagains he laintiff fo not filing agemen is concene, it is not proper. The case of bot the parties is that there w a oartitionltn the year 19% which was reduced in writing and the plaintiff has also admitted this in his plaint as well as in his statement also. Now, it was the case l l 1:5 L a o pna 6PM " a s ria b ef se n g t a p t g t a e rnts e ’i e h n Gmianenoini Devi end others Va attenara Margin ceeudeaiy n Ate tee? supreme caurr 1124. l paragraph1?. ar c he pet e i o is t i . h f o e C e :s p o te h ho he o g? af the plaintiff that the suit land was excluded from the partlllon. lt wad the arm 9f the plaintiff to establieh his contention that the suit land was excluded from the , gnartition and the agreement would have been the best piece of evidenee te establish thie which is admittedly in possessien ef the plaintiff and thue, leamed both t‘e Ceurts below have cerrectly drawn adverse inference against the plaintiff for nen filing of the abeve dncument ae the same wouid have againet the cause f the plaintiff, had it been filed. The submission ef the ceunse! fer appellant that the document ef Ex.D/12 1?. 1 ll n Age based an the said agreement end therefore, it was the onus sf the defendants to tile thet-decurnent ie 0f he ceneequence because by the document of ExDl’iZ it is only established that there was some agreement entered ihto between the pertiee on the basis of which order of Ex.Df12 was passed. 18. Thus, the above two contentions of the counsei fer the appeilant. do not have any forte. As far as the third question of law propesed by the aepelient that whether the Courts below have correctly held that defendant No.2 and subseduently defendant Nos. 5 and 8 are entitled for protection under Section 41 of the iTransfer of Act, was legally iustifted is concerned, as already mentioned in the foi‘egeing l paragraphs, defendant Ne: ueritied the titled of defendant No.1 ever the suit property who was duly recorded owner of the said property on the date of purchased He aiso tried to verify the title of defendantjgoj by publication of puh‘iic notice, inviting objections against the proposed sate and therefore both the iJarned Courts below have not committed any iilegality in holding that defendant No.2 is the bonafide purchase of the property from defendant No, 1, the ovi‘iner‘of the property and is entitled for protection under §ection 41, of Act. 1g. :Thus, on the basis of aforesaid discussions, l do not find any substantial questions of iaw invoived for adjudication of this second appeal and the appeal deaerves to he diemissed at motion atage and it is dismissed accordingly. . l i Sdl D - unwed: i i i Judge >>waw