Judgment:
1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.76/2012 Madan Lal versus Bhabhu Mal & ORS.Date of Judgment :: 29th April, 2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Shreyansh Mardia for Mr.Sandeep Shah, for the appellant.
Mr.Suresh Shrimali, for the respondents.
---- BY THE COURT: This second appeal under Section 100 CPC is directed against judgment and decree dated 11.01.2012 passed by Additional District Judge, Sumerpur, District Pali, whereby, the appeal filed against judgment and decree dated 03.01.2005 passed by Civil Judge (Junior Division).Sumerpur has been dismissed.
The facts in brief may be noticed thus: the plaintiff- respondent Bhabhut Mal filed a suit, inter alia, with the averments that the property in dispute admeasuring 65x20 ft.
was situated in village Nakhatgarh, which was of the plaintiff's ownership; it was claimed that the property in question belonged to late Chiman Lal J.as on partition between Chiman Lal J.and late Javan Mal Ji, the property fell in his share and from the date of partition in the year 1937 the plot in question was owned by Chiman Lal; out of the total land admeasuring 65x40 ft.
which came to his share in 1937, Chiman Lal sold a plot admeasuring 2 65x20 ft.
by registered sale deed dated 27.01.1966 to one Bal Chand; Chiman Lal expired on 02.06.1982 and prior to his death he executed a Will dated 11.07.1983 bequeathing his property to the plaintiff and, therefore, he was owner of the suit property; it was claimed that the letter of administration qua the said Will has been issued by the Ratnagiri Court in favour of the plaintff; however, the appellant-defendant sold the plot in question to the other respondents by way of registered sale deed dated 23.10.1986 though he had no title to the plot in question and when the plaintiff came to know of the same in the year 1989 the suit for cancellation of sale deed and for mesne profit was filed on 10.07.1991.
A written statement was filed by the appellant-defendant; it was admitted that the property was ancestral; however, it was claimed that in the year 1940 Jawan Mal expired and thereafter Chiman Lal started staying at Ratnagiri (Maharashtra) permanently; it was claimed that in Samwat year 2007 Chiman Lal handed over the property in dispute to Smt.
Jatnu Bai wife of late Jawan Mal and the property in question was in her possession and the appellant being son of Smt.
Jatnu Bai was entitled to transfer the same; it was contended that in the record of the Municipality name of Jawan Mal and Smt.
Jatnu Bai has been indicated; the property was never in possession of the plaintiff; the execution of Will by Chiman Lal was denied; title of Chiman Lal was also denied; the suit was claimed as barred by limitation and in absence of declaration it was claimed that the suit was not maintainable.
3 The trial court framed five issues and came to the conclusion that the appellant had no right to execute the sale deed qua the land in dispute; the plaintiff was entitled to mesne profit @ Rs.50/- per month; the appellant had failed to prove adveRs.possession and, therefore, the plaintiff was entitled to get possession of the suit property; the suit was not barred by limitation and, consequently, decreed the suit filed by the plaintiff and directed handing over of possession alongwith mesne profit.
Feeling aggrieved, the appellant filed fiRs.appeal.
The fiRs.appellate court by its judgment dated 17.04.2009 remanded issue No.6 to the trial court for re-deciding the same, whereafter the trial court again decided issue No.6 regarding limitation in favour of the plaintiff on 03.10.2009; whereafter the fiRs.appellate court by its impugned judgment reiterated the findings of the trial court on all the issues and dismissed the appeal filed by the appellant.
It was submitted by learned counsel for the appellant that both the courts blow fell in error in decreeing the suit filed by the plaintiff and dismissing the appeal filed by the appellant.
It was submitted that the property in question had been released in favour of Smt.
Jatnu Bai by document Exhibit-A/1 and the similar document has been produced by the plaintiff as Exhibit-8, however, both the courts below have wrongly found that the document Exhibit-A/1 has been interpolated which has resulted in passing of the impugned decree; it was also contended that the finding on adveRs.possession has been 4 wrongly recorded by the trial court and the suit was ex facie barred by limitation and the courts below fell in error in holding against the appellant.
Per contra, learned counsel for the respondents supported the impugned judgment and decree passed by the trial court and dismissal of the appeal by the fiRs.appellate court; it was submitted that the appellant without any authority has sold the suit property, which belonged to the plaintiff and both the courts below have concurrently found in favour of the appellant and, therefore, the judgment and decree passed by the trial court as upheld by the fiRs.appellate court do not call for any interference.
I have considered the rival submissions advanced by learned counsel for the parties.
The entire defence of the appellant is based on the document Exhibit-A/1, wherein, it is claimed that the suit property was released by Chiman Lal in favour of Smt.
Jatnu Bai mother of the appellant; however, based on the evidence oral and documentary available on record, both the courts have concurrently found that the document Exhibit-A/1 has been interpolated so as to change the purport and effect of the said document and the document Exhibit-8 produced by the plaintiff was the correct version; the finding on the said aspect of the matter being a pure finding of fact having been arrived at by both the courts below after thoroughly scrutinizing the evidence on record does not call for any interference as even otherwise the appellant has failed to point out any perversity in the said 5 finding.
Interestingly, the sale deed has been executed by the appellant Madan Lal in favour of Otmal and Shanti Lal, who are his natural father and natural brother respectively, which further confirms the allegations made by the plaintiff in this regard; the courts below also found that in the proceedings, which were initiated before the Ratnagiri Court for grant of letters of administration, in which, appellant Madan Lal was also a party and the suit property was shown as part of the properties forming the subject matter of the Will, wherein, the appellant did not raise any objection regarding the suit property having been claimed that of late Chiman Lal and forming subject matter of proceedings, which judgment of the Ratnagiri Court was subsequently upheld by Bombay High Court.
In view of the conduct in not claiming the suit property to be belonging to Smt.
Jatnu Bai in the proceedings before the Ratnagiri Court, there does not appear to be any substance in the claim made by the appellant.
So far as the finding of the courts below regarding adveRs.possession of the appellant is concerned, besides the oral evidence of the plaintiff himself that in 1985 at the time of marriage of his daughters the suit plot was got cleaned and was utilized; the oral evidence of the neighbours Mangi Lal and Heera Lal supported the version of the plaintiff and in view thereof the finding recorded by the trial court on issue No.6 relating to the suit not being barred by limitation and negating plea of adveRs.possession also cannot be said to be perverse.
6 In view of the above discussion, the findings of fact in the present appeal are concluded by concurrent decisions of both the courts below and no substantial question of law arises for consideration of this Court.
Consequently, the appeal has no substance and the same is, therefore, dismissed.
No costs.
(ARUN BHANSALI).J.
A.K.Chouhan/-