Mahabir Singh vs Sukhpal Singh And Others
2022 Latest Caselaw 1060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- SECOND APPEAL No. - 1248 of 1995
 

 
Appellant :- Mahabir Singh
 
Respondent :- Sukhpal Singh And Others
 
Counsel for Appellant :- N.C. Rajvanshi,Manoj Kumar Rajvanshi,Vishesh Rajvanshi
 
Counsel for Respondent :- Vishnu Sahai,B. Dayal
 

 
Hon'ble Rohit Ranjan Agarwal,J.

Heard Sri N.C. Rajvanshi, learned Senior Counsel, assisted by Sri Vishesh Rajvanshi, learned counsel for the appellant and Sri Ramesh Kumar Singh, Advocate, holding brief of Sri B. Dayal, learned counsel for the respondents.

This second appeal filed under Section 100 of C.P.C. arises out of the judgment and decree dated 25.11.1995 passed by the Ist Additional District Judge, Bulandsahar, in Civil Appeal No. 54 of 1995 allowing the appeal and setting aside the judgment and decree dated 31.03.1995 passed by the IInd Additional Civil Judge, Bulandsahar decreeing the Suit No. 219 of 1993.

This appeal was admitted on 11.12.1995 on the following substantial questions of law;

"(i) Whether the finding of the lower appellate court that the plaintiff has failed to prove the partition amongst the defendants respondents and Mahendra Singh is against the weight of oral and documentary evidence on record and ignoring the admission of some of the defendants?

(ii) Whether the construction of two walls of 4 to 5 feet height amounts to complete ouster of plaintiff possession over the disputed land and whether on such finding the suit for demolition of construction and ....... as a whole could be dismissed?"

The plaintiff appellant filed original suit No. 219 of 1993 before the court of Civil Judge, Bulandsahar against the defendants respondents for relief of mandatory injunction to remove the walls and to restore abadi on the property in dispute in its original position. Further, relief for permanent injunction was sought against the defendants restraining them from interfering in the peaceful possession of the plaintiff.

The case set-up by the plaintiff was that he had purchased abadi property No. 29 from one Mahendra Singh s/o Chattar Singh measuring 257.88 Sq. Meter through registered sale-deed executed on 26.03.1993, Paper No. 39 A-1 (Exhibit-1). It was further alleged that a private family partition had taken place between the brothers of Mahendra Singh namely Chhidi Singh, Sukhpal Singh and Summera Singh and the property in dispute had come into share of Mahendra Singh, who has transferred the same to the plaintiff appellant. It was further averred that defendant no. 1 in collusion with the defendant nos. 2 to 8 was setting to raise construction over the abadi plot purchased by the plaintiff appellant. The said suit was contested by the defendants respondents and the trial court framed the following issues;

"1. ???? ????, ??????? ???? ?? ?????? ?? ???? ?? ????? ????? ??? ????? ?? ?

2. ???? ??????????? ?? ???? ?? ???????? ???? ??? ??? ??, ?? ???? ?????? ??? ?? ?

3. ???? ???? ???? ?????? ?? ???? ?? ??????? ?? ?

4. ???? ??????? ???? ??? ???? ???? ?? ??? ???? ????? ????? ??? ???? ?? ???? ?-? ?? ?????? ??? ??? ??? ?? ???? ???? ????? ??? ??????? ??????? ??????? ???? ?? ???? ??? ??? ?

5. ???? ????? ??? ??????? ??????? ?? ??? ????? ???? ??? ??? ??, ??? ??? ?? ?????? ?"

The trial court considered and decided issue nos. 1, 2, 4 and 5 together as they were inter related and after considering the documentary as well as the oral testimony of PW-1 (Mahendra Singh), PW-2 (Mahabir Singh), PW-3 (Dalmor Singh) and DW-1 (Mahipal Singh), DW-2 (Horam Singh), DW-3 (Pyare Lal), found that the private family partition having taken place between the co-sharers and the descendants of Ganga Sahai some 15 to 16 years back. The property in dispute which came into the share of Mahendra Singh was transferred by registered sale-deed in favour of plaintiff appellant. Against the said judgment, a civil appeal was preferred by the defendants respondents being Civil Appeal No. 54 of 1995 and the lower appellate court found that the private family partition was not proved by the plaintiff as the burden of proof was upon him and also found that the plaintiff was not in possession over the property in dispute, as such, permanent injunction was reversed by the appellate court vide judgment and decree dated 25.01.1995 and allowed the appeal.

Sri N.C. Rajvanshi, learned Senior Counsel, submitted that lower appellate court fell into the trap of not formulating the point of determination as mandated under Order 41 Rule 31 C.P.C. and decided the appeal. He further submitted that the lower appellate court while reversing the finding had not considered the oral testimony of the defendants wherein they had admitted the fact that the partition had taken place between the co-sharers and the descendants of late Ganga Sahai. He further submitted that Mahendra Singh after the execution of the sale-deed has handed over the possession to the plaintiff who was there in possession and had filed suit for mandatory injunction to the effect that the walls so raised by the defendants be removed and further relief of permanent injunction was sought restraining the defendants from interfering in peaceful possession of the plaintiff appellant.

Learned counsel appearing for the respondents could not dispute the legal proposition that the lower appellate court failed to frame the point of determination before the appeal was decided on merits. He further supported the finding recorded by the lower appellate court in reversing the finding recorded by the trial court.

I have heard learned counsel for the parties and have given careful consideration to the pleadings, as well as perused the material on record.

The appeal was admitted on two substantial question of law. As far as first substantial question of law is concerned, the trial court after considering the oral testimony of DW-1 (Mahipal Singh), DW-2 (Horam Singh) and DW-3 (Pyare Lal) found that there was no denial to the fact that private family partition had taken place between the descendants of late Ganga Sahai and all the co-sharers were in their peaceful possession of the property which came into their share. The lower appellate court without considering the oral testimony of the defendant witnesses solely on the ground that plaintiff has failed to prove the factum of partition reversed the finding and allowed the appeal. Once the defendant witnesses who were the co-sharer had admitted that private family partition took place between them and they were in their exclusive possession the lower appellate court was not correct to hold otherwise. Moreover, the lower appellate court while reversing the finding did not rely upon any documentary or oral evidence and merely on the assumption that plaintiff had failed to prove the partition having taken place between Mahendra Singh, the vendor, and the defendants allowed the appeal.

I find that the finding recorded by the lower appellate court on 25.11.1995 as to the extent that plaintiff appellant had failed to prove the private family partition between Mahendra Singh and the defendants who are the co-sharer and descendants of late Ganga Sahai is totally against the material on record and the said finding cannot be sustained in the eyes of law and same is hereby set-aside.

As far as the second substantial question of law is concerned, the vendor in his oral testimony had proved the factum of execution of the sale-deed on 26.03.1993 in favour of vendee Mahabir Singh. Further, there is no denial of the fact that Mahendra Singh is the co-sharer of the property left by late Ganga Sahai. Further, the defendants in their oral testimony had admitted that private family partition had taken place between the sons of Chattar Singh, Mehtab Singh and Munshi Singh. Once it is an admitted case that Mahendra Singh has 1/5 share in the property left by late Ganga Sahai and he having transferred the property to Mahabir Singh, plaintiff appellant, through registered sale-deed, the finding recorded by the lower appellate court to the extent that plaintiff in a suit for injunction had failed to prove his possession is totally perverse as the possession of the property in dispute was handed over by the vendor Mahendra Singh to the vendee Mahabir Singh on 26.03.1993 after the execution of the sale-deed.

In view of the above, substantial questions of law framed above, stands answered.

Considering the facts and circumstances of the case, I find that the judgment and decree dated 25.11.1995 passed by the lower appellate court is unsustainable in the eyes of law and same is hereby set-aside. The suit of the plaintiff appellant stands decreed.

Appeal is allowed.

Office is directed to transmit the lower court record within fifteen days.

Order Date :- 11.4.2022

Shekhar