Matarniya And Ors vs Anga Prasad And Ors

The substantial question of law involved, formulated and to be answered in this defendants' second appeal is as under:­

"Whether learned both the Courts below were justified in holding the suit land i.e. land bearing Khasra No.1337 area 0.478 hectors situated at Village Banja Tahsil Surajpur was partitioned between the parties vide Annexure P­1 and had fallen in plaintiffs' share ?"

[For the sake of convenience, parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

The plaintiffs filed a suit stating inter­alia that the suit property situated at village Banja bearing Khasra No.1337 area 0.478 hectare was bargahi land (service land) and acquired by his father late Rameshwar Lal. It was further pleaded that during his lifetime Rameshwar Lal partitioned his entire land vide partition deed dated 28.12.1959 (Ex.P­1), by virtue of which, the suit land known as "dhokibahra land" (bargahi land) fell in share of plaintiff­Ganga Prasad, but defendant No.1­Ganesh Lal got a patta of the suit land in his name in the year 1985 and sold the suit land to defendant No.11­ Matraniya by sale deed dated 23.3.1987, who started interfering with the possession of the plaintiffs which necessitated the suit for declaration of title and possession.

Defendants No.3, 4, 10 and 11 filed their joint written statement and denied the averments made in the plaint, but admitted the fact that family partition dated 28.12.1959 was effected and pleaded that the suit land was not included in family partition and the suit land was acquired by original defendant No.1­Ganeshlal by grant of patta and Ganesh Lal sold the suit land to defendant No.11.

The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 31.8.2000, decreed the suit holding that the sale deed is bad as the suit land is known as "dhokibahra land" (bargahi land), which was allotted to plaintiff No.1 in partition on 28.12.1959, which was sold by defendant No.1 to defendant No.11 and identity of land is only established, which the first appellate Court has affirmed, against which, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial question of law has been formulated, which has been set out in the opening paragraph of this judgment.

Mrs.Meena Shashtri, learned counsel for the appellants/defendants, would submit that both the Courts below were concurrently erred in holding that the suit land fell in share of the plaintiffs in partition on 28.12.1959 (Ex.P­1) and it could have held that such suit land was never subject­matter of partition vide Ex.P­1 and it is the land allotted to original defendant No.1­Ganesh Lal in Revenue Case No.1A/19­(1)/85­86 which he sold to defendant No.11 by registered sale deed dated 23.3.1987, as such, it cannot be held that both the Courts below are justified in granting decree in favour of the plaintiffs.

On the other hand, Mr.Nishikant Sinha, learned counsel for respondent No.2/plaintiff No.2, would submit that fact of partition is admitted by the defendants and there is no dispute relating to identity of the land, which both the Courts below have concurrently concluded that the suit land was subject­matter of partition known as "dhodibahra land" (bargahi land) which came into share of the plaintiffs, as such, finding recorded by both the Courts below is finding of fact based on evidence available on record, which is neither perverse nor contrary to record and the appeal deserves to be dismissed.

I have heard learned counsel for the parties and considered their rival submissions made herein­above and also went through the records with utmost circumspection.

It is the case of the plaintiffs that the suit land is known as "dhodibahra land" (bargahi land) and was alloted to plaintiff No.1 in partition on 28.12.1959 (Ex.P­1), which was admitted by defendant No.1, but pleaded that it was not alloted to him in partition, but it was granted to defendant No.1­Ganesh Lal on patta and thereafter he sold the suit property to defendant No.11­Mataraniya by sale deed dated 23.3.1987.

The trial Court after appreciating oral and documentary evidence available on record by a detailed reasoning has clearly recorded a finding that the suit land is the land which was received by plaintiff No.1 on partition known as "dhodibahra land" (bargahi land) and in appeal it has been affirmed by the first appellate Court and the plaintiffs are in possession of the suit land since 28.12.1959 and patta was granted without hearing plaintiff NO.1, by which Ganesh Lal has acquired no title. The finding of fact recorded by two Courts below holding that the suit land known as "dhodibahra land" (bargahi land) came to be allotted to plaintiff No.1 vide partition deed dated 28.12.1959 (Ex.P­1) is finding of fact based on evidence available on record, which is neither perverse nor contrary to record. The substantial question of law is answered in favour of the plaintiffs and against the defendants.

Accordingly, the second appeal being without substance is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).

A decree be drawn up accordingly.