Jisukh v. Sushma Devi & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. M. Singh, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Jisukh, who was successful in the trial court, but was non-suited by the lower appellate court, has filed the instant second appeal. Plaintiff-appellant and defendant-respondents no.4 and 5 are real brother. Case of the plaintiff-appellant is that he had 1/6th share in 52 kanals 04 marlas land described in the plaint. Defendant no.4 was also co- sharer in the said land. Plaintiff and defendant no.4 carved out plots/colony in the land and separately sold plots to different persons. In the instant suit, the dispute is regarding one plot measuring 150 sq. yards (41' x 33'), as described in the plaint. The plaintiff claimed R. S. A. No. 1518 of 2010 (O&M) 2 that this is his unsold plot and he is in exclusive possession thereof. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in possession of the plaintiff over the suit plot. Injunction was also sought to restrain defendant no.2 from executing sale deed of the said plot in favour of defendant no.3. Defendants no.1 and 2 contested the suit. It was pleaded that defendant no.4 sold a plot measuring 60 sq. yards vide sale deed dated

30.12.1986 and another plot measuring 90 sq. yards vide sale deed dated

18.12.1995 to defendant no.1 and accordingly, defendant no.1 became owner in possession thereof, which is the suit property. Defendant no.1 transferred the suit property to her son defendant no.2, who is owner in possession thereof. The suit has been filed by the plaintiff in collusion with his brothers – defendants no.4 and 5. Defendant no.3 pleaded that defendant no.2 agreed to sell the plot measuring 90 sq. yards out of suit plot to defendant no.3, but defendant no.3 found the plaintiff to be in possession of the said plot. Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 20.09.2008, decreed the plaintiff's suit. However, first appeal preferred by defendants no.1 and 2 has been allowed by learned Additional District Judge, Faridabad, vide judgment and decree dated 14.12.2009 and thereby, suit filed by the plaintiff has been dismissed. R. S. A. No. 1518 of 2010 (O&M) 3 Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the plaintiff is co-sharer in 52 kanals 04 marlas land and is in exclusive possession of the suit plot measuring 150 sq. yards and therefore, the plaintiff is entitled to injunction prayed for. The contention cannot be accepted. Admittedly, the plaintiff and defendant no.4, who were co-sharers in the aforesaid joint land, carved out plots and separately sold the plots to different persons. Defendant no.4 sold the suit property to defendant no.1 vide two sale deeds dated 30.12.1986 and 18.12.1995. Consequently, defendant no.1 became owner in possession thereof and she transferred the same to her son defendant no.2, who is therefore, owner in possession thereof. The instant suit was filed in the year 2003 i.e. 17 years after the first sale and 8 years after the second sale by defendant no.4 to defendant no.1. It is not the case of the plaintiff that the said sales by defendant no.4 to defendant no.1 were in excess of the share of defendant no.4 in the joint land. Consequently, in the instant case, the plaintiff cannot succeed. On the other hand, if the plaintiff having sold various plots is still left with any share in the joint land, the only remedy for him could be to file a suit for partition. R. S. A. No. 1518 of 2010 (O&M) 4 There is nothing on record to prove exclusive possession of the plaintiff over the suit plot. Learned counsel for the appellant vehemently contended that defendant no.3, in his written statement in the instant suit as well as in a suit filed by defendant no.3 against defendants no.1 and 2 pleaded that present plaintiff is in possession of the suit plot. However, any such admission by defendant no.3 could have no adverse bearing against right and title of defendants no.1 and 2. Except the aforesaid evidence, there is practically no evidence to depict exclusive possession of the plaintiff over the suit plot. On the contrary, defendant no.1 had purchased the suit plot through two sale deeds long before the filing of the suit and consequently, she became owner in possession of the suit property. In this context, it is significant to notice that it is the own case of the plaintiff that he and his brother defendant no.4 had separately sold various plots out of the joint land to different persons. The plaintiff delivered possession of the plots sold by him to his vendees. Similarly, defendant no.4 delivered possession of the plots sold by him to his vendees. Consequently, defendant no.4 delivered possession of the suit plot to his vendee defendant no.1. Thus, examined from any angle, it cannot be said that plaintif is in actual exclusive possession of the suit plot. Finding of the lower appellate court to this effect does not suffer from any illegality or infirmity so as to warrant interference in second appeal. Lower appellate court is the R. S. A. No. 1518 of 2010 (O&M) 5 final court of fact. Finding of lower appellate court is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine. November 09, 2010 monika ( L. N. MITTAL ) JUDGE