Smt. Anjali Devi v. Baidya Nath Arya & Anr.

Mr. Ratna Das For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER (Per: HONOURABLE MR. JUSTICE VIJAYENDRA NATH) 3 30-01-2012 Heard the learned counsel appearing on behalf of the appellants. The defendant is the appellant in this second appeal against the judgment and decree of affirmance. There is no dispute that the suit property originally belonged to Siban Sah, who was the father of the vendor of the plaintiff as well as the father of defendant no.2, who has sold the suit property to defendant no.1. It is the case of the plaintiff that after the death of Siban Sah, his two sons and one daughter amicably partitioned the property inherited by them and the defendant no.2, who is the daughter of Siban Sah ,did not take any share in the suit property, rather she took ornaments and cow in lieu of her share. It is the further case of the plaintiff that Patna High Court SA No.218 of 2010 (3) dt.30-01-2012 the two sons of Siban Sah later on by sale deeds dated 10-12-75 and 7-5-82 sold the entire four decimals which they had inherited from Siban Sah, to the plaintiff and put him in possession.

It is further the case of the plaintiff that later on the defendant no.2 had executed sale deed with regard to the part of four decimals of land in favour of the defendant no.1 although she had no right, title and interest left after the partition. The defendants by filing the written statement contested the claim of the plaintiff and asserted that the defendant no.2 along with her two brothers jointly inherited four decimals of land of their father after his death and the defendant no.2 has valid right and title for alienating her 1/3rd share i.e., 1/ 1/3 decimals. Both the courts below , after considering the evidence, pleadings and submissions of the parties, have come to the finding the plaintiff has validly acquired title and possession over four decimals of land by virtue of his purchase from the two sons of Siban Sao. It has also been found by both the courts below that the neither defendant no.2 examined herself as a witness in support of her case nor the defendant no.1 had examined herself in support of her sale deed from defendant no.2 and further no attesting witness on the sale deed has been examined to support the valid execution of the sale deed in Patna High Court SA No.218 of 2010 (3) dt.30-01-2012 favour of defendant no.1.

Consequently, the suit and the appeal thereafter had been dismissed. The learned counsel appearing on behalf of the appellant has submitted that both the courts below have wrongly held that there had been partition between the parties although there was no such relief prayed by the plaintiff. It has been urged that the defendant no.2 has got share in four decimals of the property of Siban Sah and was well within her rights to alienate the same in favour of defendant no.1. The plaintiff has pleaded that in amicable partition defendant no.2 did not take share in immovable property and she accepted ornaments and cow in lieu of the same. This fact has been denied by defendant no.2 in her written statement and as such the defendant no.2 was the best person to corroborate and establish the fact regarding partition. The non-examination of defendant no.2 as a witness in the suit, without any explanation, has rightly led both the courts below to draw adverse inference against her.

Similarly, the defendant no.1 has also not examined herself in order to establish her case of valid purchase from the defendant no.2 nor any witness appearing on the sale deed had been offered for examination in the suit in support of valid execution of the sale deed. As such, both the Patna High Court SA No.218 of 2010 (3) dt.30-01-2012 courts below have rightly drawn adverse inference against the defendant no.1. It is the specific case of the plaintiff that his vendor got the property in partition and, therefore, after appreciating the evidence of both the parties, the learned courts below have recorded the finding in favour of the plaintiff. During the course of argument no perversity could be established in the findings. The issues between the parties are concluded by concurrent findings of fact. There is no substantial question of law arising for consideration in this appeal which is, accordingly, dismissed. .Roy/- (Vijayendra Nath, J.)