Laxman vs Gulab Bai

Alok Aradhe, J.—Heard.

This appeal has been filed by the defendant, who has lost in both the Courts.

Facts giving rise to filing of the appeal briefly stated are that the original plaintiff filed the suit inter- alia on the ground that defendant No. 1 is the son of the plaintiff. It was also pleaded that plaintiffs'' father was owner of the land admeasuring 19.41 acres. In respect of aforesaid land, Civil Suit namely C.S. No. 199-A/74 was filed, which was compromised in appeal namely Civil Appeal No. 24-A/77. In the aforesaid compromise, the original plaintiff was allotted land admeasuring six acres forming part of Khasra No. 48/1. It was also pleaded that defendant No. 1 was also party to the aforesaid suit. The land in question was re-numbered as land bearing Khasra No. 161/2 admeasuring 2.61 acres. However, defendant No. 1 got his name mutated in the revenue records as owner. It was further pleaded that defendant No. 1 is not the sole owner of the suit land and the plaintiff and her sons and daughter are the co-owners. The plaintiff accordingly filed the suit seeking the relief of declaration and permanent injunction.

The defendant No. 1 filed the written statement in which inter-alia it was pleaded that he is the son of the plaintiff. It was pleaded that pursuant to the compromise recorded on 27.7.1997 in Civil Suit No. 24- A/77, the defendant No. 1 was allotted six acres of land. It was also pleaded that one Barelal had adopted defendant No. 1 and had registered the adoption deed. It was also pleaded that plaintiff was never in possession of the suit land and defendant No. 1 is in possession of the suit land. It was also pleaded that defendant No. 1 is the owner of the suit land by virtue of registered partnership deed and the plaintiff has no right, title or interest in respect of land in question.

The trial Court decreed the suit. The aforesaid decree was affirmed in appeal.

Learned counsel for the appellant submitted that the findings recorded by the Courts below are perverse as they have been recorded in disregard and ignorance of the admissible evidence namely Ex.D/1 and D/7 as well as the oral admission of plaintiff''s witness No. 3. It was also argued that the Courts below grossly erred in granting a decree for partition in the civil suit in which relief of declaration of title and permanent injunction was sought. It was further pleaded that after the death of the original plaintiff, the legal representatives did not amend the plaint and sought the relief of declaration of title.

I have considered the submissions made by learned counsel for the appellant and have perused the record. The Courts below have taken into account Ex.D/7 i.e. the plaint as well as Ex.P/3 and Ex.D/19 i.e. the compromise arrived at between the parties and has held that late Barelal was not a party in the aforesaid proceeding and, therefore, Barelal did not receive the property in question. It was further held that though the adoption deed namely Ex.D/1 dated 1.9.1969 is a registered partition deed, however, the Courts below have taken note of the evidence of Laxman namely defendant No. 1 himself, who in para 7 of his cross-examination has admitted that in the school certificate, he has not mentioned the name of Barelal, but has mentioned the name of his natural father namely Jagannath Prasad. It has further been held that defendant No. 1 is an employee of the Health Department and had disclosed to be son of Jagannath Prasad. The Courts below have also taken into account the Khatoni namely Ex.D/17 and D/18 of the years 2009, 2010 and 2011 in which name of father of defendant No. 1 is mentioned as Jagannath. It has further been held that defendant No. 1 has not proved the factum of adoption. Accordingly, it was held that defendant No. 1 has not received the property on the basis of the registered partition deed. It was further held that since Barelal expired issueless, therefore, the property would devolve on Gulab Bai, the original plaintiff. Accordingly, the suit was decreed. The aforesaid decree has been affirmed in appeal. So far as the contention of learned counsel for the appellant that a decree for partition has been granted by the trial Court, suffice it to say that the trial Court merely held that plaintiffs No. 2 to 8 shall be entitled to equal share in the suit property. No decree for partition has been passed. The concurrent findings of fact are recorded on the basis of meticulous appreciation of evidence on record which by no stretch of imagination can be said to be either perverse or based on no evidence. It is well settled in law that this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot re-appreciate the evidence even if another view is possible. Learned counsel for the appellant was unable to dislodge the concurrent findings of fact.

Even otherwise, the jurisdiction of this Court to interfere with the findings of fact is well defined by catena of decisions of Supreme Court. This Court in exercise of power under Section 100 of the Code of Civil Procedure can interfere with the finding of fact only if the same is shown to be perverse or based on no evidence. See: Narayanan Rajendran and Another Vs. Lekshmy Sarojini and Others, , Hafazat Hussain Vs. Abdul Majeed and others (2011) 7 SCC 189, Union of India (UOI) Vs. Ibrahim Uddin and Another, , D.R. Rathna Murthy Vs. Ramappa, , Vishwanath Agrawal Vs. Sau. Sarla Vishwanath Agrawal, and Vanchalabai Raghunath Ithape (D) by L.Rs. Vs. Shankarrao Baburao Bhilare (D) by L.Rs. and Others, .

For the aforementioned reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed.