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Judgment
Heard the parties.
This appeal has been preferred against the judgment and decree dated 18.06.2012 passed in Partition Appeal No.15 of 2006 by the District Judge,
II, Palamau at Daltonganj whereby the learned District Judge, II, Palamau at Daltonganj dismissed the appeal and upheld the judgment and decree
passed by the Sub-Judge No. III, Palamau at Daltonganj in Partition Suit No.10 of 1989. It is the further case of the plaintiff that from the year 1977
he has been in service at Ningha Colliery in the district of Burdwan in the State of West Bengal. Both of his brothers (i.e. defendant Nos.1 and 2)
used to reside with his father owing to their unemployed condition and they used to work under the father of the plaintiff for proper management of his
flourishing business of hide and bone and out of the business of his father, they have also acquired certain property mentioned in Schedule B of the
plaint in their name for the benefit of whole family. In this way being the head and karta of the family, the father and later on the defendant Nos.1 and
2 used to acquire and develop the immovable properties and holdings which are also the suit property. It is also the case of the plaintiff that after the
death of his father in the year 1973, the defendant Nos.1 and 2 without break began to manage and carry on the trade of his father. They did not show
the accounts to the plaintiff. Hence, the plaintiff filed Partition Suit No.53 of 1983 but the same was dismissed and the plaintiff could not succeed to
restore the said suit. Hence, the plaintiff has filed this suit.
The contesting defendants besides the usual defence, pleaded that the father of the plaintiff and defendant Nos. 1 and 2 had never been flourishing
business of hide and bone and when the defendants acquired the property, the condition of his father was not in such a position that he could purchase
the immovable property but the defendants themselves in their own efforts and earnings have purchased the land and holdings under the dispute. They
claim that the entire suit property are their selfacquired property and the documents of the sale deeds of the property and the mutation of the property
is in their name and they are also paying the rent and have receipts therefor.
On the basis of the rival pleadings of parties learned trial court framed eight issues, the important of them being issue no. (iii), (vi) and (vii) which
are as follows:-Â
(iii) Is there any unity of title and possession regarding the suit properties between the parties to the suit? Â Â Â
(vi) Is the suit properties joint family properties of the parties and was purchased Benami by their father in the name of others?
(vii) Is the Benami transaction (Prohibition Act 1988) in any way effect or bar this suit for partition?
In support of his case, the plaintiff examined six witnesses including him and proved the declaration made in the plain paper by the defendant No.2,
letters of correspondence in connection with business of hide and bone. From the side of defence, besides the documents proved seven witnesses
were also examined. After taking into consideration the evidences both, oral and documentary in the record, the learned trial court considering that it
was admitted by the plaintiff that the trade licence of his father was cancelled in 1966 and that the plaintiff never raised any objection at the time of
mutation of the properties in favour of his brother and also the fact that the plaintiff admitted that the defendant no. 2 was working as a professor
since 1970 and further that in Partition Suit No. 53/83 earlier filed by the plaintiff, the sisters of the plaintiff admitted that the suit property is the self-
acquired property of the defendant no. 1 and 2, came to the conclusion that the plaintiff has failed to prove unity of title and possession over the suit
property and dismissed the suit.
Being aggrieved by the said judgment and decree dated 13.04.2006 in Partition Suit No. 10/89, the plaintiffs filed appeal against the said judgment
and decree and the same was registered as Partition Appeal No. 15 of 2006 and the same was ultimately heard and decided by the learned District
Judge, II, Palamau at Daltonganj.
Learned lower appellate court, in view of the grounds taken in appeal, thoroughly scrutinized and discussed the facts and evidences on record in
detail and made independent appreciation of the evidence in respect of each of the issues framed by the learned trial court. On due appraisal of the
evidences and materials on record, considering the evidence that the defendant no. 1 was a contractor and defendant no. 2 was a professor and
finding that the witnesses of the defendants are trustworthy while the testimony of the witnesses of the plaintiff do not inspire confidence, the lower
appellate court came to the finding that the plaintiff has not been able to prove that the suit properties were purchased Benami or that the same are
joint family property and the plaintiff could not also prove the unity of title and possession over the suit property and dismissed the appeal as already
indicated above.
Mr. Dr. Hasnain Waris, the learned counsel for the appellant submitted that the learned lower appellate court could not appreciate the evidence in
the record in right perspective and the impugned judgment and decree is against the weight of evidence in record. It is also submitted that the learned
lower appellate court did not consider Section 57 of Principles of Mahomedan Law as mentioned in the book Mulla’s Principles of Mahomedan
Law (19th Edition) written by Hidayatullah and Arshad Hidayatullah and published by LexisNexis Butterworths.
Learned counsel for the respondents on the other hand, defended the impugned judgment passed by the learned court below and submitted that the
learned court below has rightly dismissed the suit as the plaintiff has failed to prove that the suit property is a joint property of the parties and the
pleadings of the plaintiff is contradictory as some of the property has admittedly been Benami property hence the question of partition thereof does not
arise.Â
After hearing the parties and considering the materials on record including the impugned judgments and decrees of the Courts below, I find that
learned lower Appellate court has considered all the relevant facts, evidences and materials on record in correct perspective and has arrived at the
finding of fact that the plaintiff has not been able to prove that the suit properties were purchased Benami or that the same are joint family property
and the plaintiff could not also prove the unity of title and possession over the suit property. It is a settled principle of law that in exercise of power
under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which
is the final court of fact, unless the same is found to be perverse, as has been reiterated by the Hon’ble Supreme Court of India, in paragraph -10
of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 as under:-Â
It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of
fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be
held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-
tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."" (Emphasis Supplied).
Learned Counsel for the appellant could not point out any specific instance of any particular evidence being not considered and his contention that the
learned lower appellate court could not appreciate the evidence in the record in right perspective is without any merit. The learned Counsel for the
appellant also could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial
question of law to be framed and decided by this Court in exercise of second appellate jurisdiction.Â
Thus there being no merit, this appeal is dismissed but in the circumstances without any costs.Â
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