Balram Singh And Ors vs Purushottam And Ors

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/plaintiffs under Section 100 of

the CPC against the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree by which the trial Court

dismissed plaintiffs' suit for declaration of title, partition and possession of suit land admeasuring 10.720 hectares situated at village Petoli, 11.96

hectares situated at village Tanhkapar, 7 hectares situated at village Muragaanv and 0.360 hectare situated at village Maandri as shown in Schedule

'A' annexed with the plaint.

The following genealogical tree would demonstrate the relationship between the parties :Â​

Suit land was originally held by Somchandra Singh. He had three sons namely Damodar Singh, Bhagwat Singh and Pancham Singh. Plaintiffs are

the sons of Bhagwat Singh and Pancham Singh whereas defendants are sons, daughter and grandsons of Damodar Singh. Plaintiffs, being the

successors in interest of Bhagwat Singh and Pancham Singh, filed a suit for declaration of title, partition and possession stating inter alia that suit land

shown in Schedule 'A' annexed with the plaint situated at four villages namely Petoli, Tanhkapar, Muragaanv and Maandri, Tahsil Kanker was the

joint family property of all the three brothers namely Damodar Singh, Bhagwat Singh and Pancham Singh and no lawful partition of the suit land has

taken place between them, therefore, they are entitled for 1/3rd share in the suit land as defendants' predecessor in title Damodar Singh sold some

part of suit land during his lifetime and cause of action arose on 14/03/2003.

Defendants filed their joint written statement and set up a defence that partition has already taken place amongst their predecessor in title Damodar

Singh and plaintiffs' predecessors in title Bhagwat Singh and Pancham Singh and pursuant to the partition, they are in possession of their respective

shares and a document was also executed with that regard which is in possession of the plaintiffs and they have admitted the said fact in the

proceeding before the Tahsildar on 20/02/2004 and have given the description of the land which fell in their respective shares.

Learned trial Court, upon evaluation and appreciation of oral and documentary evidence on record, dismissed the suit holding that suit land was

partitioned in the year 1944Â45 amongst Damodar Singh, Bhagwat Singh and Pancham Singh and plaintiffs have no right and title over the suit land,

therefore, they are not entitled for any relief as claimed by them in the suit which was affirmed by learned first appellate Court in the appeal preferred

by the plaintiffs holding that pursuant to the partition held in the year 1944Â45, they are in separate and cultivating possession of their respective

shares of the suit land and moreover, the partition held in the year 1944Â45 has not been challenged by any of the parties and it is not the case of the

plaintiffs that partition is unjust, unfair and detrimental to their interest. Learned first appellate Court further held that plaintiffs' suit is barred by

limitation.

Mr. Ravindra Agrawal, learned counsel for the appellants/plaintiffs would submit that both the Courts below have concurrently and legally erred in

holding that partition has already taken place amongst Damodar Singh, Bhagwat Singh and Pancham Singh pursuant to which they are in separate and

cultivating possession of their respective shares alloted to them during the partition held in the year 1944Â45. The finding recorded by both the Courts

below holding that suit land has already been partitioned amongst the parties in the year 1944Â45 is a finding of fact which is perverse and contrary to

the record, as such, the appeal deserves to be admitted by formulating substantial question of law in this regard.

Both the Courts below have concurrently held that partition has taken place amongst the three brothers namely Damodar Singh, Bhagwat Singh and

Pancham Singh and thereby, dismissed the suit of the plaintiffs.

From a careful perusal of the evidence adduced on behalf of the plaintiffs, it would appear that Makhan Singh (P.W. 1) in paragraph 5 of his

statement has clearly admitted that partition has taken place amongst the three brothers namely Damodar Singh, Bhagwat Singh and Pancham Singh

and as per the said partition, plaintiffs are in cultivating possession of the land situated at Village Petoli. In paragraph 10 he has also stated that during

the lifetime of his father Pancham Singh, he did not challenge the mutation proceeding in the name of Damodar Singh.

Similarly, Purushottam (P.W. 2) in paragraph 1 of his crossÂexamination has stated that in the year 1944Â45, the three brothers i.e. Damodar

Singh, Bhagwat Singh and Pancham Singh have partitioned the suit land villageÂwise by allotting separate shares in the four villages and according to

said partition, they are staying in the villages which fell in their share in the partition. In paragraph 2, he has also admitted that in Village Petoli, all the

three brothers have got their share and he also detailed the land alloted to all the three brothers in each of the village.

Likewise, Krishna Kumar (P.W. 3) in paragraph 7 has admitted that partition took place amongst Damodar Singh, Bhagwat Singh and Pancham

Singh. As such, there is a clearÂcut admission made on behalf of the plaintiffs in their statements before the trial Court accepting the stand of the

defendants which learned trial Court has accepted by recording the finding in paragraph 26 of its judgment which states as under :Â​

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Learned first appellate Court, after minutely assessing the oral and documentary evidence on record and the finding recorded by the trial Court,

reached to the categorical conclusion in paragraphs 41, 42 and 43 of its judgment which state as under :Â​

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The wellÂreasoned finding recorded by the trial Court as affirmed by the first appellate Court in view of the categorical admission made by the

plaintiffs' witnesses namely Makhan Singh (P.W. 1), Purushottam (P.W. 2) and Krishna Kumar (P.W. 3) holding that suit land has already been

partitioned amongst plaintiffs' predecessor in title namely Bhagwat Singh and Pancham Singh and defendants' predecessor in title namely Damodar

Singh and thereafter, they are in separate and cultivating possession of the land which fell in their respective share during the said partition is a pure

and simple finding of fact based on evidence available on record which is neither perverse nor contrary to the record and does not involve any

substantial question of law for determination.

The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).