Sakal Dev vs Uma Shankar and Another

Rakesh Tiwari, J.—Heard Learned Counsel for the parties and perused the record.

The brief facts of this case are that the Plaintiff-Respondent filed Original Suit No. 48 of 2002, Uma Shankar v. Sakal Deo, in the court of Civil Judge (Junior Division) Pashchimi) Ballia for permanent injunction restraining the Defendant from interfering in the possession of applicant over the disputed land shown by letters 7, 8, 3, 2 and restraining the Defendant from raising any construction, not to cut the trees and not to demolish the Plani (thatch roof structure). The said suit was filed on the ground that plot No. 2083A area 36 decimal situate in Sahulanyee Sarayan Banjari, is ancestral grove land of parties partitioned between them about 23 years ago; that Defendant No. 2 is share holder of 18 decimal of the said land, on Western side and the Plaintiff is share holder of 9 decimal of the land on East side and the Defendant/Appellant has 9 decimal of the remaining land in the middle from North to South.

The Defendant/Appellant contested the suit by filing written statement denying plaint allegation and stating therein that there was no partition between the parties. It is further alleged that parties are in possession according to their share. The Defendant No. 1 is in possession over 9 decimal land on South-East corner of plot No. 2083A in which he planted 18 Mango trees, one Mahua tree. A Plani/thatch roof structure also exist over the same and his animals are also kept in the same. No documentary evidence to proof the case of Plaintiff has been filed and the Plaintiff has also been not examined.

Suba son of Plaintiff was examined as P.W. 1 and Moti Chand was examined by the Plaintiff as P.W. 2 who in his statement before the Court stated that neither he nor any of the person was present at the spot at the time of partition and had only heard that property had been partitioned. Thus, the only evidence produced by the Defendant was the statement of his son which was without any support of material evidence. It was further stated by him that the village came under consolidation operation in 1970 and the disputed plot was left out and as such no gata number was allotted to the said plot during consolidation which shows that there was no partition between the parties before consolidation operation. He further stated that more than 10 years before the partition took place in 1960 elapsed and as P.W. 1 was born after 1960, hence he could not be a witness to the partition as he is about 45 years of age at the time of giving his statement in the Court.

The Defendant examined Ram Deo and 2 other witnesses in support of his case, all of whom have stated that there is no final partition by metes and bounds between the parties and they are using their share on their understanding.

Subsequently, the suit was dismissed by the trial court by judgment and order dated 27.2.2007.

Aggrieved by the judgment and order dated 27.2.2007 the Plaintiff/Appellant filed Civil Appeal No. 25 of 2007 which has also been dismissed by judgment and order dated 29.4.2010, hence these present second appeals.

Both the appeals have been filed challenging the validity and correctness of the judgment and order dated 29.4.2010, passed by Additional District Judge, Court No. 2, Ballia dismissing the Civil Appeal No. 25 of 2007, Shakal Dev v. Uma Shanker and Anr., as well as C.A. No. 26 of 2007, Sakal Dev v. Uma Shanker and Anr., arising out of judgments and decree dated 27.2.2007 and 17.2.2007 allowing Original Suit No. 48 of 2002 and dismissing the Original Suit No. 309 of 2002 respectively.

Both the courts below have recorded concurrent finding of fact regarding peaceful possession over the disputed plot and dismissed the suits in question.

The counsel for the Defendant/Appellant has not been able to show any illegally in the judgments of the courts below.

The Court is not inclined to interfere in concurrent finding of facts recorded by the courts below, but to examine substantial question of law which may arise in the second appeal on the basis of pleadings of the parties.

For all the reasons stated above as no substantial question of law arises, this Court is not inclined to interfere in any findings of fact recorded by the courts below. Both the appeals are, accordingly, dismissed. No order as to costs.