Aqil Ahmad & Another vs Sushma Rastogi & Others

Heard Sri A.M. Tripathi, learned counsel appearing for the defendantappellants and Sri S.N. Pandey, learned counsel appearing for respondent Nos. 1/1 and 1/4.

One Ghamandi was the Bhoomidhar of the two plots No. 3253 which was subdivided into plot No. 3253 A and 3253B, and 3275. On his death these plots devolved upon his three sons Mitra Sen, Ramesh Chandra and Banarasi Das in equal shares. In a family settlement which was acted upon and was subsequently reduced to righting on 8th February 1979 Ramesh Chandra received one Biswa of land in plot No. 3253 and 11 Biswa in plot No. 3275. He transferred his entire share of land in plot No. 3253 in favour of Dharampal vide sale deed dated 17.8.1981. Thereafter he executed another sale deed 10.3.1987 in favour of the present defendantsappellants i.e. Aqil Ahmad and Syed Akhtar transferring his 1/3rd share which included his share in plot No. 3253. On the other hand Mitra Sen on the basis of the family settlement got a share of 13 Biswa in plot No. 3253 which he had transferred in favour of Smt. Viddyawati and Meer Singhi as well as the plaintiffrespondent by three separate sale deeds dated 10.3.1980, 11.3.1980 and 27.6.1984.

On the basis of the aforesaid sale deed dated 27.6.1984 executed by Mitra Sen in favour of the plaintiffsrespondents she instituted original suit No. 128 of 1987 against the present defendantsappellants and the Ramesh Chandra for permanent injunction restraining them from interfering in her use and possession of the land in dispute. The Court of first instance decreed the suit which decree has been confirmed by the lower appellate Court. It has been held that there was a valid family settlement between three brothers. Sri Ramesh Chandra had only one Biswa of land in plot No. 3253 which he had transferred in favour of Dharampal on 17.8.1981. Thus, he was left with no other land in the aforesaid plot which he could have validly transferred to the defendantappellants by the subsequent sale deed dated 10.3.1987. Therefore, the defendantsappellants have acquired no title over the land in dispute.

Learned counsel for the appellant contended that the Courts below have erred in placing reliance upon the family settlement. Such a family settlement is not acceptable to the defendantsappellants. The argument cannot be accepted for the simple reason that Ramesh Chandra from whom the defendantappellants are claiming to have acquired rights in the land in dispute was a party to the suit who had not disputed the above family settlement and has not even denied the plaint allegations of paragraph 1A wherein clear averment had been made with regard to the family settlement of 8th February 1979. Therefore, it does not lie in the mouth of the defendantappellant to dispute and contend that no family settlement had taken place amongst the three brothers. Thus, the Courts below have not committed any error in placing reliance upon the said family settlement.

In view of the aforesaid facts and circumstances, the appeal lacks merit and stands concluded by a finding of fact. No other point has been pressed before me. There is no substantial question of law involved in this appeal. Accordingly, the appeal is dismissed. No orders as to costs.