Nahar Singh and anr. Vs. Kastoori and anr. - Court Judgment

Excerpt:
civil procedure code, 1908 - section 100--suit for cancellation of sale deed--defendant sold the property on the basis of will executed in her favour by one 'm' who was admittedly a co-sharer in the property--will not disputed by the plaintiff--plaintiff also failed to show his ownership and possession over the property in question--both the courts below rightly dismissed the suit--no substantial question of law arises. - - 1 has categorically held that the plaintiffs have failed to produce the evidence with regard to ownership or possession and, so also, held the sale-deed as valid document on the basis of the fact that kistoori devi was having the will executed in her favour by one mohan singh and, on that basis, she had right to alienate the property in question. -1. 9. learned counsel for the appellants submits that both the courts below have completely igno red the settled principles of law, therefore, both the courts below failed to consider that the claim of the defendant canno t be accepted in total no ncompliance of section 68 of the evidence act. therefore, the learned courts below rightly held that the plaintiff-appellants have failed to prove their ownership and possession over the property in question.gopal krishan vyas, j.1. by this second appeal filed under section 100, c.p.c. the appellants have challenged the validity of impugned judgment and decree dt. 25.04.2006 passed by the addl. district judge no. 1, bhilwara in civil appeal no. 108/2004, whereby, judgment and decree dt. 11.10.2004 passed by the civil judge (senior division), gangapur in civil suit no. 25/97 has been upheld.2. brief facts of the case indicate that the appellant-plaintiffs filed suit for cancellation of sale-deed, declaration and injunction on 15.04.1997 before the civil judge (senior division), gangapur. in the suit, it was prayed that sale-deed executed by respondent no. 1 in favour of respondent no. 2 dt. 19.04.1996 for property in question may be quashed and set aside and it may be declared that there was no right in favour of respondent no. 1 to sell the property in question in favour of the respondent no. 2. it is further prayed that by a decree of permanent injunction, the respondents may be restrained from taking possession of 'guwari' and shall not change the construction.3. in reply to the suit, the respondents denied the averments made in the suit and submitted that disputed property was in possession of mohan singh and mohan singh executed a will in favour of respondent no. 1 kistoori, wife of ganesh teli and, on the basis of said will, she executed saledeed in favour of respondent no. 2 which is in accordance with law and the plaintiffs have no right to interfere in the property in question.4. on the basis of the pleadings of the parties, the trial court framed as many as six issues for adjudication. after framing the issues, two witnesses p.w.-1 nahar singh and p.w.-2 shantilal were produced as witnesses on behalf of the plaintiffs and statements of d.w.-1, kistoori and d.w.-2 badrilal were recorded from the side of the defence; and, thereafter, the trial court proceeded to decide the matter issue-wise.5. i have perused the judgment rendered by the trial court.6. the trial court while dealing with issue no. 1 has categorically held that the plaintiffs have failed to produce the evidence with regard to ownership or possession and, so also, held the sale-deed as valid document on the basis of the fact that kistoori devi was having the will executed in her favour by one mohan singh and, on that basis, she had right to alienate the property in question. therefore, in pursuance of the will dt. 21.12.1995 executed by mohan lal bhandari, kistoori devi came to have the ownership of the property in question. the said finding was further challenged by the plaintiffs before the district judge, bhilwara in appeal which, upon transfer, was decided by the addl. district judge no. 1, bhilwara.7. the lower appellate court also decided the appeal issuewise and held that the sale was rightly executed by kistoori devi and, at the time of arriving at the said finding, the learned trial court considered document ex.-1, so called partition-deed and other material placed on record. the learned appellate court also considered the oral evidence given by the plaintiffs in their statements.8. learned counsel for the appellants submits that both the courts below have committed error because, at the time of deciding the matter, both the courts below over-looked the evidence of the plaintiff-appellants and misread the evidence, therefore, both the courts have committed mistake in appreciation of evidence. it is also argued that learned courts below have erred in law in no t taking ex.-1 into consideration and, at the same time, the learned lower appellate court also erred in no t relying upon the document ex.-1.9. learned counsel for the appellants submits that both the courts below have completely igno red the settled principles of law, therefore, both the courts below failed to consider that the claim of the defendant canno t be accepted in total no ncompliance of section 68 of the evidence act. further, a person having no ownership right, title or interest canno t sell the property to any third person. it is also submitted that both the courts below have no t considered the document ex.-1 being 30 years old document which ought to have been relied upon, therefore, it is argued that both the courts have committed error while no t appreciating the evidence in correct perspective.10. learned counsel for the appellants invited my attention towards the judgments reported in, : air 1983 rajasthan 57 and 2000 (3) wln 694 and submits that both the courts below have erred in law while no t relying upon the documents without any plausible reason.11. i have perused the entire record of the case and, so also, perused the judgments impugned.12. according to facts of the case, the plaintiff-appellants were under obligation to prove the fact with regard to ownership and possession. statements of p.w.-1 nahar singh and p.w.-2 shantilal were recorded in their evidence; and, likewise, partition-deed was exhibited in support of the claim with regard to ownership and no other documentary evidence was produced on record. on the contrary, there is a will executed in favour of kistoori devi by mohan singh bhandari who was admittedly co-sharer in the property and, at the strength of the said will, kistoori devi sold the property in question. therefore, the learned courts below rightly held that the plaintiff-appellants have failed to prove their ownership and possession over the property in question. moreover, the plaintiff-appellants are not disputing the will executed by mohan singh bhandari in favour of kistoori devi. the contention of the appellants that mohan singh bhandari was no t having any right over the property in question was no t proved by evidence on record and as such, in the facts and circumstances of the case, the plaintiff-appellants have no t proved their case with regard to no n-existence of right in favour of mohan singh bhandari who executed the will in favour of respondent no. 1. in this view of the matter, the finding arrived at by learned courts below is neither perverse no r illegal.13. both the judgments cited by learned counsel for the appellants are totally irrelevant for deciding this case. the facts of this case are completely different. the trial court has rightly dismissed the suit of the plaintiff-appellants and, therefore, the learned lower appellate court has no t committed any error in upholding the judgment and decree passed by the trial court, therefore, the same does no t require any interference. so also, no substantial question of law emerges in this appeal for consideration. there is thus no force in this second appeal.14. this second appeal is, therefore, accordingly dismissed.