Kalyan Singh @ Kalyan Kumar Singh v. Smt. Meena Devi & Ors.

This second appeal has been filed by the defendant Ist party appellants-appellants against the Judgment and Decree dated 30th January, 2010 passed by the learned Addl. District Judge-cum- Fast Track Court No.1, Banka in title appeal No.121 of 2005 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and Decree of the trial Court dated 11.08.2005 passed by the learned Munsif, Banka in title suit No.59 of 1990.

3. The plaintiffs respondent filed the aforesaid suit for declaration of his title on the suit property and for declaration that the sale deed executed by defendant 3rd party in favour of the defendant 5th party has not affected the right of the plaintiff. Injunction was also prayed for.

4. The plaintiff respondent claimed the aforesaid relief 2 Patna High Court SA No.188 of 2010 (9) dt.17-09-2013 alleging that there was partition between Nalini Kant Singh and his brother Jamini Kant Singh and the suit property fell in the share of Shyama Prasad Singh s/o Nalini Kant Singh. The defendant Ist party, i.e., descendant of Jamini Kant Singh had no concern with the said property. Shyama Prasad Singh had separated from his two brothers and in the said partition suit the property remained with the said Shyama Prasad Singh who sold the property to the plaintiff by registered sale deed dated 23.10.1987 which was registered on 9.11.1987. Subsequently, the plaintiff came to now that the defendant 5th party has got a sale deed created from defendant 3rd party on 27.10.1987. According to the plaintiff, the defendant 3rd party has got no right to transfer the property in favour of defendant 5th party, therefore, the right, title and interest of the plaintiff is not affected.

5. The defendants Ist party-appellants filed contesting written statement alleging that there was no partition between Nalini Kant Singh and Jamini Kant Singh. In fact Shyam Prasad Singh and his two brothers have got half share in the suit property and the defendant Ist set have got half share in the suit property being the descendant of Jamini Kant Singh. Since, they have got half share in the property, they allowed defendant 2nd party to install a Gumti on monthly rental basis and Jamabandi No.237 for an area of 21 biggha 5 dhur including the suit property is running in the name of defendant No.5 and 9.

6. The trial Court decreed the plaintiff’s suit finding that the sale deed executed by Shyama Prasad Singh in favour of plaintiff is 3 Patna High Court SA No.188 of 2010 (9) dt.17-09-2013 valid as there had been partition. The defendant Ist set filed appeal before the lower appellate Court. The lower appellate Court dismissed the appeal recording a finding that the family of the parties was not joint family and partition had already been taken place and the suit land was in exclusive share and possession of vendor of the plaintiff who sold it to the plaintiff and put her in possession thereof.

7. The learned counsel appearing on behalf of the appellant submitted that the learned lower appellate Court merely on the basis of submission of the parties recorded the finding that the appellant’s case is not well founded and must not prevail vide paragraph 13. According to the learned counsel, since the lower appellate Court has not considered the materials and evidences available on record, the finding at paragraph 13 is not sustainable. The learned counsel further submitted that the Jamabandi is still running in the joint names of the parties, therefore, also the Judgment of the lower appellate Court is vitiated.

8. Except this question, no other substantial question of law has been raised.

9. From perusal of the Judgment of the lower appellate Court, no doubt, it appears that after noting the submissions of the parties at paragraph 13, the lower appellate Court recorded this fact stated above but it appears that the reason for the finding has been recorded in paragraph 14 of the Judgment. In paragraph 14, the oral evidences as well as documentary evidences has been considered by the lower appellate Court. The lower appellate Court 4 Patna High Court SA No.188 of 2010 (9) dt.17-09-2013 has also considered recording of the Jamabandi in the name of both the parties and also considered the evidence of the defendant being D.W.9. The lower appellate Court has found that the D.W.9 himself admitted that he had also sold some property to the purchaser and put them in possession of the property. The learned lower appellate Court after considering the other documentary evidences categorically recorded that there was partition between the parties and the suit land was in exclusive share and possession of the vendor of the plaintiff who sold to the plaintiff. So far this finding that there had been partition between the parties and that the suit property fell in the share of Shyama Prasad Singh is pure finding of fact recorded by both the Courts below. In such circumstances, this finding of fact cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. So far the submissions of the learned counsel for the appellant are concerned, therefore, are not substantial question of law involved in the present second appeal. Accordingly, I find that there is no substantial question of law involved in this second appeal and thus this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-