Narayan Pandey vs Anuradha Nagesiya

Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/defendants.

By the impugned judgment and decree, the First Appellate Court has partly allowed the appeal preferred by the appellants/defendants vide judgment

and decree dated 06.04.2011 passed by the learned Second Additional District Judge, Ambikapur, District Sarguja (C.G.) in Civil Appeal

No.03A/2007, arising out of the judgment and decree of the Trial Court dated 08.03.2007 passed by the learned Fifth Civil Judge ClassÂII,

Ambikapur, District Sarguja (C.G.) in Civil Suit No.60A/2006, whereby the learned Trial Court allowed the suit preferred by the respondent/plaintiff.

Mr. Shakti Raj Sinha, learned counsel for the appellants/defendants, would submit that the First Appellate Court went wrong in holding that partition

deed dated 26.01.1987 (ExÂD/1) is not the reliable document and the suit property is owned by Late Bharat Pandey and now is inherited by the LRs

of Bharat Pandey/respondent by recording a finding perverse to the record. It ought to have held that though the property was initially granted in

settlement in favour of Bharat Pandey but in family arrangement vide ExÂD/1 dated 26.01.1987, it fell in the share of defendant No.1 Narayan

Pandey, father of defendant Nos.2 & 3, as such by recording perverse finding, the first appeal has been allowed, therefore, this appeal involves

substantial question of law for determination.

I have heard learned counsel for the appellant, considered his submissions made hereinÂabove and also went through the records with utmost

circumspection.

Admittedly and indisputably, the suit property bearing Khasra No.48/2, area 0.012 decimal situated at Village Juna Lakhanpur, Tahsil Ambikapur,

District Sarguja was granted to Mr. Bharat Pandey vide patta dated 03.02.1977 (Ex P/2) by the Tahsildar, Ambikapur and he was declared as

bhumi swami of the suit land. He died in the year 1993. He was in possession of the suit land/house. In front side of the suit house, there were four

rooms and in back side, Bharat Pandey and his family was living. In one room, he was carrying on business of hotel and the rest three rooms were

given on rent. But on account of his deteriorating health condition, it was suggested by the defendant No.1 that the suit shop along with the articles

used for hotel business be given to him on monthly rent of Rs.1,000/Â, which was accepted by Bharat Pandey and his wife, the plaintiff, and the suit

shop was given to his brother defendant No.1. When the request was made for vacating the suit shop, it was denied by the defendant No.1. The

defendant No.1 got executed the forged partition deed (ExÂD/1). Thereafter the plaintiff sent a legal notice dated 18.12.1997 (ExÂP/4) to the

defendant No.1 for vacating the suit shop. It is the case of the plaintiff that the defendant No.1 is the tenant and tenancy has been terminated, as the

suit shop is not vacated and the possession of the articles relating to the hotel business has also not been delivered for which she filed civil suit seeking

declaration of title, peaceful possession of the suit shop, in which the defendant No.1 filed written statement and controverted the plaint allegations

stating interÂalia that on account of family arrangement vide ExÂD/1 dated 26.01.1987, the suit shop fell in his share and as such the plaintiff is not

entitled for decree.

The Trial Court upon appreciation of oral and documentary evidence available on record held that the plaintiff and her sons and daughters are the

exclusive title holder of the land bearing Khasra No.48/2, area 0.12 decimal and the defendants being tenants, the plaintiff is entitled for decree for

possession along with the articles used for the hotel business. The defendants preferred first appeal before the First Appellate Court. The First

Appellate Court slightly modified the decree holding that the relationship between the plaintiff and defendants as landlord and tenant is not established

but the plaintiffs are the title holder of the suit land and on the basis of title, the plaintiffs are entitled for decree for possession but they are not entitled

for decree for recovery of articles used for hotel business, against which the defendants have now again preferred this second appeal.

The Trial Court has clearly recorded a finding that the suit land was granted in favour of Bharat Pandey, the predecessorÂinÂtitle of the plaintiffs,

vide patta (ExÂP/2) and he is in possession over the suit shop and it cannot be said that on account of restriction mentioned in the patta, he could not

have transferred it to his brother Narayan Pandey, the defendant No.1. It was further held that the partition deed (ExÂD/1) and electricity bill (ExÂ‐

D/2) are not the documents worth reliable for number of reasons and granted decree in favour of the plaintiff. The First Appellate partly modified the

decree by holding that the relationship between the plaintiff and defendants as landlord and tenant is not established but the plaintiffs are the title

holder of the suit land and on the basis of title, the plaintiffs are entitled for decree for possession but they are not entitled for decree for recovery of

articles used for hotel business. As such, the finding recorded by the two Courts below holding that the plaintiff being the title holder are entitled for

possession of suit premises are based on material available on record and it has rightly been held that no title has been conferred vide ExÂD/1 in

favour of defendant No.1 and it cannot be said that on account of restrictions in the patta vide ExÂP/2, it could not have been transferred in favour of

defendant No.1 by Bharat Pandey, predecessor inÂtitle of the plaintiff. As such the findings recorded by the two Courts below are findings of fact

based on the material available on record, which are neither perverse nor contrary to law.

I do not find any substantial question of law for determination in this second appeal preferred by the appellants/defendants. It deserves to be and is

hereby dismissed in limine without notice to the other side. No order as to cost (s).