Daulat Bai & Ors. vs Shersingh Through Lrs & Anr

This second appeal under Section 100 of the CPC is at the instance of the defendant challenging the judgment of the two courts below. Trial court by the judgment dated 23.12.94 had partly decreed the suit for declaration and partition filed by the respondent-plaintiff and the first appellate court by the judgment dated 13.7.200 had partly modified the decree.

The undisputed facts are that Shersingh (original plaintiff) and Ramsingh (original defendant) were real brothers. Both of them have died pending the suit and appeal and their LRs have brought on record.

The suit was filed by the plaintiff with the plea that the suit land at village Nandgaon and Badood were ancestral properties and that the plaintiff has half share in the suit property. It was further pleaded that in case if the court reaches on a conclusion that the partition had already taken place, then 1/3rd share for each be declared in respect of Survey No.107, the part of the land which was given to their mother Sakubai and Punibai, after their death, the said land has been recorded in the name of Sher Singh, Ramsingh and Punibai, daughter of Gendabai. Similarly for certain other properties the claim was raised.

The defendant Ramsingh by filing the written statement had denied the claim and had raised the plea that partition had already taken place between the parties 25-30 years back. In respect of the land in Survey No.107 he took the plea that he had spent amount on the funeral expenses of Punibai, therefore, on giving half of the amount by the plaintiff he was ready to give half Acre of that land.

The courts below have found that the partition had already taken place 25-30 years back. The respective share of the parties in the suit property has been determined by the judgments of the court below. The first appellate court by partly modifying the decree has found right of the plaintiff on some more property and in respect of Survey No.107 he has been found to be entitled to 1/3rd share.

This court on 23.11.2000 had admitted the appeal on following substantial question of law:-

"Whether the trial Court has not granted proper opportunity to the defendants to lead evidence and has wrongly recorded the order-sheet dated 09.12.1994 and has wrongly closed the right of evidence on 16.12.1994, therefore, in the absence of defendant's evidence the findings recorded by the Courts below are perverse and bad in law and the judgment and decree passed by the Courts below are also illegal?"

After hearing the learned counsel for the parties and on perusal of the record, it is noticed that the trial court had not committed any error in granting opportunity to the defendant to lead the evidence. The proceedings of the trial court reveal that the defendant was granted several opportunities to produce the evidence and recording this fact on 9.12.1994 he was granted the last opportunity by the trial Court to keep the witnesses present, but on the next date i.e. on 16.12.1994 the defendant had not examined any witness and had voluntarily closed the evidence. Nothing has been pointed out by learned counsel for the appellant to controvert the same.

In view of this, the findings which have been recorded by the courts below cannot be faulted on the ground that the same have been recorded without giving proper opportunity to the defendant to adduce the evidence. Hence the substantial question of law is answered against the appellant and appeal is accordingly dismissed.

C.C. as per rules.