Sowa Lal Thakur v. Mundrika Singh & Ors.

4. Mishri Thakur son of late Ram Dayal Thakur.

5. Chathiya Devi Daughter of late Dharamdeo Thakur.

6. Kamla Sharma.

7. Ramayan Sharma both sons of late Mahendre Thakur.

8. Ramagya Sharma son of late Banshi Sharma all residents of village-Bela Tola, Muashari Praga Goya, P.S. Dariapur, P.O. Arvind Nagar, Via Sitalpur District-Saran. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shailendra Kumar Bhartee For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 7 27-02-2013 Heard the learned counsel for the appellant. The plaintiff is the appellant in this appeal against the judgment and decree of affirmance dismissing the suit. The plaintiff filed the suit for declaration that the suit property was the self acquired property of his father and further for declaration that the defendant no. 1 did not acquire title over the same on the basis of the sale deed executed by the defendant nos. 2 and 3. Patna High Court SA No.275 of 2011 (7) dt.27-02-2013 2 The factual matrix of the case unveils the facts that Kula Thakur had four sons namely Dihal Thakur, Ram Dayal Thakur, Jaggu Thakur and Banshi Thakur. The plaintiff is the son of Jaggu Thakur whereas the defendant nos. 2 and 3 are the descendants of Dihal Thakur. The defendant no. 4 is the son of Ram Dayal Thakur and defendant no. 8 is the son of Banshi Thakur. The plaintiff has come out with the case that there had been separation among the four brothers in the year 1942 in which three bigha of the ancestral land was partitioned and all the four brothers came in exclusive possession of their allotted shares. The plaintiff has claimed that his father Jaggu Thakur purchased the suit land out of his own income, which has been inherited by the plaintiff after the death of his father in the year 1970. The defendants have contested the claim of the plaintiff and denied the assertion that the suit land was the self acquired property of Jaggu Thakur. It is the specific case of the defendants that all the sons of Kula Thakur used to carry on business of selling woods in Assam which generated sufficient income in the joint family out of which the suit property was purchased in the name of Jaggu Thakur. The defendants further averred that there had been partition in the year 1962 in which Dihal Thakur was allotted the share in plot no. 7625 (suit plot) and in further partition among his sons the defendant nos. 2 and 3 got the suit land which they had validly sold to the Patna High Court SA No.275 of 2011 (7) dt.27-02-2013 3 defendant no. 1. The trial court after considering the pleadings and evidence of the parties returned the finding that plot no. 7625 was not the exclusive self acquired property of the father of the plaintiff rather it was the joint family property out of which the defendant nos. 2 and 3 had sold out their share which had been allotted to them in partition. It has further been found that the purchaser defendant no. 1 is in possession of the suit property. In appeal, the appellate court, after reappraisal of evidence, has concurred with the findings of the trial court. The learned counsel for the appellant has submitted that both the courts below have erred in law in misappreciating the evidence of the parties and have wrongly non-suited the plaintiff. It has been urged that the sale deed for the plot no. 7625 was exclusively in the name of Jaggu Thakur and the said plot had also been mutated in his name alone indicating the fact of self acquisition of the same by Jaggu Thakur. It has further been argued that the separation is established from the admission of the defendants themselves in the written statement wherein they have accepted the separate living and separate business which gives credence to the case of partition in the year 1942. Criticizing the impugned judgments further it has been submitted that the Panchanama and award (Ext. C and Ext. C/1) Patna High Court SA No.275 of 2011 (7) dt.27-02-2013 4 are forged and fabricated document and in absence of the proof of their valid execution, the courts below should not have relied upon the same. Similarly the mortgage deeds (Ext. D series) have also been asserted by the learned counsel for the appellant to be forged and fabricated document with the further assertion that those documents should not have been relied upon as evidence as they do not bear the signature of Jaggu Thakur. After perusal of the impugned judgments of the courts below and considering the submissions of the learned counsel for the appellant, it is manifest that the sale deed for the suit plot stood in the name of Jaggu Thakur who was the father of the plaintiff. The plaintiff has claimed the suit plot to be the self acquired property of his father whereas the defendants have asserted the same to be the joint family acquisition. The plaintiff has asserted separation in the family in the year 1942 but the defendants have claimed the family partition in the year 1962 and partition by metes and bounds in the year 1963 in which the branch of Dihal Thakur was allotted 5 katha 18 dhur 5 dhurki in the suit plot no.

7625. While scrutinizing the evidence of separation in the year 1942 as claimed by the plaintiff, the courts below have taken into notice the permits issued by the government officials in the year 1944 (Ext. F series) which stood in the name of Jaggu Thakur but through which his other brothers were also allowed to come to Patna High Court SA No.275 of 2011 (7) dt.27-02-2013 5 Assam for doing the business along with him. Further, the courts have also taken into notice the mortgage deeds (Ext. D series) along with the deed of family settlement (Ext. C) for reaching to the finding that the suit land was not the exclusive property of the father of the plaintiff. Besides, the deposition of the witnesses including that of the plaintiff, examined as P.W. 6, have also been scanned and thereafter the finding has been recorded that the plaintiff has failed to establish the exclusive title of his father over the suit plot no. 7625. During the course of argument no perversity in the findings of fact as recorded by both the courts below could be established. The submissions on behalf of the appellant mainly centers around reappreciation of evidence which cannot be undertaken at the second appellate stage in view of the concurrent finding of facts based upon evidence. As such, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)