Bishun Teli and ors. Vs. Bhupat Teli and ors. - Court Judgment

Excerpt:
civil procedure code, 1908 - section 100--second appeal--concurrent findings of fact--plaintiffs failed to prove partition among three sons of b in 1942--and thereby allotment of suit land to b--and also failed to prove their exclusive possession and construction of wall on its southern side--held, as plaintiffs failed to prove their subsisting title over suit land, their suit was rightly dismissed. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 4. both the courts below, on the basis of evidence adduced by parties, recorded concurrent findings of fact that plaintiffs failed to prove partition among three sons of bhairo in the year 1942 and thereby allottment of suit land to bishun. they also failed to prove their exclusive possession and construction of wall on its southern side. 6. the plaintiffs failed to prove their subsisting title over the suit land and so their suit was rightly dismissed.ordergurusharan sharma, j.1. plaintiffs are appellants. one churo teli, recorded tenant had five sons. on partition among them, the suit plot no. 4171, area 5 decimals came in khas possession of bhairo teli, who left behind three sons, hiraman, sukar and bishun, plaintiff no. 1. hiraman died leaving behind his son, defendant no. 1 and sukar left behind his sons. defendant nos. 2 and 3. bishun along with his wife and son filed title suit no. 67 of 1974 for declaration of title, confirmation of possession or in alternative for recovery of possession over the suit land, if found dispossessed during pendency of the suit.2. plaintiffs claimed partition by metes and bounds among three branches by panchayati and allotment of suit land to them. a compound wall was- constructed by them on the southern side of the plot in question. plaintiff no. 1 transferred it to his wife, plaintiff no. 2 by registered sale deed, ext. 1.3. according to defendants 1 to 3 partition took place in the year 1950, wherein only bishun separated and suit plot was allotted to hiraman and sukarjointly. plaintiffs never came in possession of the suit land and defendants possession was also declared over it in a proceeding under section 145 of the code of criminal procedure, ext. a. they also claimed acquisition of title by adverse possession.4. both the courts below, on the basis of evidence adduced by parties, recorded concurrent findings of fact that plaintiffs failed to prove partition among three sons of bhairo in the year 1942 and thereby allottment of suit land to bishun. they also failed to prove their exclusive possession and construction of wall on its southern side.5. in khatiyan, ext. b the suit plot was recorded in the name of churo teli and in its remarks column possession of bhairo teli was shown.6. the plaintiffs failed to prove their subsisting title over the suit land and so their suit was rightly dismissed.7. i find no merit in this second appeal. it is dismissed, but without costs.8. appeal dismissed.

Judgment:
ORDER

Gurusharan Sharma, J.

1. Plaintiffs are appellants. One Churo Teli, recorded tenant had five sons. On partition among them, the Suit Plot No. 4171, area 5 decimals came in khas possession of Bhairo Teli, who left behind three sons, Hiraman, Sukar and Bishun, Plaintiff No. 1. Hiraman died leaving behind his son, Defendant No. 1 and Sukar left behind his sons. Defendant NOS. 2 and 3. Bishun along with his wife and son filed Title Suit No. 67 of 1974 for declaration of title, confirmation of possession or in alternative for recovery of possession over the suit land, if found dispossessed during pendency of the suit.

2. Plaintiffs claimed partition by metes and bounds among three branches by Panchayati and allotment of suit land to them. A compound wall was- constructed by them on the southern side of the plot in question. Plaintiff No. 1 transferred it to his wife, Plaintiff No. 2 by registered sale deed, Ext. 1.

3. According to Defendants 1 to 3 partition took place in the year 1950, wherein only Bishun separated and suit plot was allotted to Hiraman and Sukarjointly. Plaintiffs never came in possession of the suit land and defendants possession was also declared over it in a proceeding under Section 145 of the Code of Criminal Procedure, Ext. A. They also claimed acquisition of title by adverse possession.

4. Both the Courts below, on the basis of evidence adduced by parties, recorded concurrent findings of fact that plaintiffs failed to prove partition among three sons of Bhairo in the year 1942 and thereby allottment of suit land to Bishun. They also failed to prove their exclusive possession and construction of wall on its southern side.

5. In Khatiyan, Ext. B the suit plot was recorded in the name of Churo Teli and in its remarks column possession of Bhairo Teli was shown.

6. The plaintiffs failed to prove their subsisting title over the suit land and so their suit was rightly dismissed.

7. I find no merit in this Second Appeal. It is dismissed, but without costs.

8. Appeal dismissed.