Hemant Batra vs Niraj Batra
2022 Latest Caselaw 3909 MP

                                                  1              S.A.No.421/2017

              HIGH COURT OF MADHYA PRADESH
                          BENCH AT GWALIOR


                           :SINGLE BENCH:


          {HON'BLE SHRI JUSTICE ANAND PATHAK}


                     SECOND APPEAL No.421/2017

                              Hemant Batra
                                    Vs.
                            Neeraj Batra & Anr.

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Shri Mohan Lal Bansal, learned counsel for the appellant.
Shri B.S. Dhakad, learned counsel for the respondents.
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                             JUDGMENT

(Delivered on 22nd Day of March, 2022)

1. This appeal under Section 100 of the Code of Civil Procedure,

1908 has been preferred by the appellant/plaintiff against the

judgment and decree dated 07-07-2017 passed by First

Additional District Judge, Joura District Morena in Civil

Appeal No.3-A/2015 confirming the judgment and decree

dated 24-01-2017 passed by the Civil Judge Class -II, Joura

District Morena in Civil Suit No.34-A/2015 whereby suit of

appellant/plaintiff has been dismissed.

2. Precisely stated facts of the case are that the appellant/plaintiff

-Hemant Batra filed a suit for declaration and permanent

injunction in respect of the suit property on the allegations that

defendants (brothers of appellant) got the sale deed executed

in their favour by misleading his father and taking benefit of

his ailment. The suit was dismissed by the trial Court but the

counterclaim filed by the defendants was allowed declaring

the defendants to be owner of the suit property. Through the

counterclaim, defendants pleaded that plaintiff is not son of

Sundarlal. He is son of one Swadesh (mother of defendants)

who married to Sundarlal as widow and plaintiff came with

her and thereafter from the wedlock of Sundarlal and

Swadesh, defendants' birth took place. Against the judgment

of dismissal of suit and decree in favour of defendants,

plaintiff filed an appeal but met the same fate and appeal was

dismissed and therefore, this second appeal has been

preferred.

3. According to learned counsel for the appellant, learned Courts

below erred in passing the impugned judgment and decree and

caused illegality in not decreeing the suit of plaintiff whereas

he proved his case that in partition, the suit property -house in

question came into his share wherein he is residing and

defendants are already residing in their separate houses given

by his father and being son of Sundarlal he has right to possess

the said property but defendants in order to oust the plaintiff

from his right, get the sale deed executed in their favour.

4. On the other hand, learned counsel for the respondents

opposed the submissions made by the appellant and submitted

that no question of law nonetheless substantial question of law

is involved in the present appeal. Further the Courts below

have rightly decreed their counter claim as plaintiff is not

legitimate son of Sundarlal and suit property was self-earned

property of Sundarlal, therefore, he had every right to transfer

that property according to his wishes. Thus, prayed for

dismissal of the appeal.

5. Heard learned counsel for the parties at length and perused the

record.

6. It is a case where plaintiff/appellant filed a suit for declaration

and permanent injunction against the defendants (his own

brothers) and main allegations are that suit property was

ancestral in nature because his father Sundarlal was given

Rs.50,000/- by his father Jeewandas and from that amount,

property in question has been purchased and business has been

started by late Sundarlal.

7. Apart from the written statement, defendants also filed counter

claim in rebuttal to the claim made by the plaintiff and issues

No.1 to 3 were framed by the trial Court in this regard and

evidence was led by the parties. Issues No.1 to 3 framed by

trial Court are as under:

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8. Issues No.1 to 3 are in respect of claim made by

appellant/plaintiff and in para 12 to 21, trial Court considered

those aspects in detail and found that appellant is not entitled

to get 1/3rd share as owner and possessor of the suit property.

Trial Court specifically held that at the first instance plaintiff

did not prove his case that house was purchased by late father

of plaintiff and defendants from the money given by his father

Jeewandas and even if he received the money but that became

his self-earned property and he was entitled to use that

property as per his wishes. That property would not come

under the category of ancestral property.

9. Other issues delineated by the trial Court in detail including

the question of valuation and court fee and thereafter

dismissed the suit accordingly.

10. First appellate Court considered the said controversy from the

prism of facts and law both and thereafter affirmed the

judgment of trial Court. Two Courts below have already

appreciated the controversy on facts as well as on law. Neither

the case suffers from non-joinder of necessary party nor any

issue regarding Court fee exists. The Courts below duly vetted

the rival submissions and thereafter passed the impugned

judgment and decree. Thus, no case for interference is made

out. All other findings given by the Courts below are findings

of fact, therefore, cannot be interfered with.

11. Even otherwise, concurrent findings of facts cannot be looked

into by this Court as they are concurrent findings of facts only

and not substantial questions of law. The Courts below have

given concurrent findings of fact elaborately. Therefore, at this

stage in the jurisdiction under Section 100 of CPC, no

interference can be made on the findings of facts given by the

Courts below. Thus, the questions purportedly tried to be

referred are question of facts and not any substantial question

of law.

12. In view of the aforesaid discussions as well as conclusions

drawn and keeping in view the concurrent findings of facts

given by the Courts below and the scope of interference under

Section 100 of CPC, this Court does not find involvement of

any substantial question of law in this appeal. Thus, being

bereft of merit, admission is declined and appeal is hereby

dismissed.

                                                       (Anand Pathak)
Anil*                                                      Judge

              ANIL KUMAR
              CHAURASIYA
              2022.03.14
              22:39:35
              -07'00'