J- ^ '^ d-11c7icTlei d»T=c| c^ieiicld ^5.^T. f^TaTRT^'? (E5.7T.) f^[?ft~3T 3T"cft~cT ^—r—--72 005 ^ I <s| ^.1 ^^TBT ^ZTT STs^cT ^-t -cl 1 ^ ^cff 4-5 ^\[cr\ Td c| |^ BT^^r? ^^r'^ cTT^ £T^TcT^t Rd cr11 £T3TcTfl~ (E^.^TT.).. .. 3T1cftc?TTe-f1T^ft/'QTRfcTTRr^ft fZT'?>^[ r^f^^f^z ^i u^ cri ci i cr1 fqTTr ^^f?T ^T'a'T^ 3^T 4 6 'SHcT f^TcTT^ft <s|f^teiiqi^| £-|d-iclxTl cT^. ZT f^TcTT ^lctidxTl (^.^T.) .. .. ^CCI^CIT^ft/cTTcft fsRraT c^d^l^ ST^ftcT STcfcITcT SJFCT 1 00 c^TO?TO~?T :^t..; ::^^'. IIHH y Appellant/ Defendant Respondent/ Plaintiff HIGH COURT OF CHHATTISGARH : BII-ASPUR ilNo. 419 of 2005 SmtSabra Begam Vs. : Nand Kishore Khandelwal Appellantfdefendant by Shri A.W. Khan, Advocate. ORDER (Passedon(^/12/05) Dhirendra Mishra. J This is the defendar^t's second appeal as the suit preferred by the plaintiff was decreed by thte trial Court and the first appeal preferred by the defendant has beert dismissed by th^a Dhamtari by the iinpugned judgment and decree dated 29.06.2005. (Parties hereinafter shall bereferred to as per/their description before the trialCourt.) j " , 2. The plaintifffiled a suitfbr possession and damages onthe groundttiathe purchased the suit house through registered sale deed for a consideration of Rs.30,000/- on j 12.01.1987. At the time of transfer, 'transferor Barkatbee had promisedthat defenciant shallvacate the house, however, when the defendarjtt did not vacate as promis^d, the above suit for possession and damages of Rs.8,100/- towards rents paid by the plaintiff, wasfiled. 3. The defendaht denied the suit and submitted that Gulamuddin, husband of 1 !1 ' '. . 1'. -. : -1 Barkatbee had given the suit house by oral Hibanama to Abdul Sattar, husband ofthe defendant, therefore notitle passed tothe plaintiff on the basis of sale deed executed by Barkatbee. r 4. However, learned trail Court decreed the suit by recording a fihding that the possession of the defendant over the suit |house is illegal and the plaintiff is entitled to recover damages of Rs.8,1QO/-at the rate of Rs.225/- /€ -. L^f-. i'1 ..! m per month from the defendant and that there is no non-joinders of necessary parfy in the suit. 5. The findings of the trial^ourt^^^^^ lowerappellateCourtbytheimpugnedjudgmentanddecree. 6. Learned counsel j for the appellant/defendant has challenged the concurrent finding^ of both the Cpurts below on the ground that both the Courts b^low have |committed illegality by not relying on the oral evidence to the fact that Gulamuddjn had given the suif h&use by oral Hibanama to Abdul Sattar and |the suit was iiable for dismissal for non-joinder of Barkatbee as a pafty. The findings of both the Courfe below is based on onesidedappreciationofevidenceavailableonreco^^^^ 7. I have heard learney counsel for the appellant/defendart 8. It has been obser^ed in the impugned judgment that the defendant had preferred an objed:ion when ttie property was| mutated in the name of Barkatbee as earli^r itwas recorded ih the namf of Gulamuddin, however, her objeGtionwas ^ejecfed but she did not chatlenge the mutatjon in the name of Barkatbe^, demonstrates that the def^ title ofBarkatbee Even otherwise boththeCou the oral evidence of Hibanama by discussing the oral evidence adduced bythedefendantinlthisregard. 9. The Courts below have disbelieved the existence of oral Hibanama on the other circumstance|that theaffidawt filed byBarkatbee for mutatjon bears the signature of Abdul Sattar as witness and thus relyingupon the sale deed executed by Barkatbee in favour of the plaintiff, the Courts below have held thatthe plaintiff is the owner pf the suit hbuse and^ ofthe defendantisjllegajandaccordinglydecreedthesuitonthebasisof properand detailedjappredation ofthe evidence available ori record. 10. On the basis of aforesaid analysis, this Court is of the considered view that findlngs of botlji the Courts telow are^^^ and no substantialjquestion ctf law as proposed by the defendant in the memo of appeal or any pther, is mvolved for adjudication of this appeal. 11. Consequently, the appeal fails and is dismissed. •[——^ Dhirendra Mishra Judge fcM^