Mohanlal Gupta vs Ramashankar Mishra And Others

Rama Shankar Mishra-respondent No.1 was plaintiff before the trial Court, who has filed the suit for declaration of title, permanent injunction,

partition of suit land and to declare partition between his father and brothers dated 17/5/1996 to be null and void. Further a prayer was made that land

sold to defendant No.9 namely Mohan Lal Gupta by defendant No.1 Ramashray by Ex.D1 is null and void and plaintiff is entitled to get the possession

over the suit land after removing the construction done by defendant No.9.

Learned trial Court held that the disputed suit property is ancestral joint Hindu family property of plaintiff and defendant Nos. 1, 2 and 3. It was

further held by the trial Court that plaintiff has 1/4th share in the suit property. Learned trial Court held that partition dated 17/5/1996 is bad in law by

which defendant No.1 i.e. the father of plaintiff Ramashraya gave 5.53-5.53 acres of land to defendant Nos. 2 and 3 i.e. namely Siddhnarayan and

Kripashankar respectively. Learned trial Court also held that gift deed by maternal grandfather in respect of village which fell in their share is not

proved by the plaintiff. The suit filed by the plaintiff was decreed to the extent that he is entitled to get 1/4th share of the suit property. Learned trial

Court also held that Ramyash, who is defendant No.5 in the suit has no right to sell 1/4th of his share in the suit property to Mohan Lal Gupta by

registered sale deed. The suit property was joint family property and same was not partitioned, therefore, sale deed was held to be bad.

Plaintiff Ramashankar Mishra challenged the issues in appeal which were answered against him. It was averred by the plaintiff Ramashankar in

appeal that as Issue Nos. 18 and 19 are answered in his favour, therefore, the trial Court ought to have allowed Issue No.3 regarding removal of

encroachment done by defendant No. 9 Mohan Lal Gupta on the suit property. Learned appellate Court held that defendant Ramyash, who had sold

the property, has not filed any appeal against the judgment and decree of the trial Court. Neither the legal representative of defendant No.5 or Mohan

Lal Gupta had filed any appeal against judgment and decree passed by the trial Court. Since Issue Nos. 18 and 19 have been answered in the favour

of plaintiff-respondent No.1, therefore, trial Court ought to have allowed Issue No.3 also. Holding the same, appellate Court has allowed the appeal

and held that conclusion given in paragraph No.35 of judgment and decree is set aside and decreed that defendant No.9 Mohan Lal Gupta, who is

appellant in S.A. No. 2204/2018 may remove his construction made during pendency of suit on basis of registered sale deed Ex.D/1 and plaintiff-

respondent No.1 is entitled to get possession of the said land.

Second Appeal No. 1653/2019 is filed by the legal hires of Ramyash namely Shravan Kumar and two others. Said legal hires had not preferred any

appeal against judgment and decree passed by the trial Court. Similarly S.A. No. 2204/2018 has been filed by Mohan Lal Gupta, who had also not

preferred any appeal against the judgment and decree passed by the trial Court. Issue Nos. 18 and 19 has been decided against the appellants and

they have not challenged the said issues in first appeal. As the said issues has become final and, therefore, appellants in both the appeal, who had not

preferred any first appeal has no right to prefer second appeal before this Court.

Resultantly, S.A. No. 1653/2019 and S.A. No. 2204/2018 are dismissed.