Subhadra vs Bhupendra

Rakesh Mohan Pandey, J

Heard on admission.

This second appeal has been preferred by the plaintiffs against the judgment and decree passed by the learned Ist Additional District Judge, Raigarh, in Civil Appeal No.7-A/2002, dated 30.08.2003, whereby the appeal preferred by the plaintiffs was dismissed and the judgment & decree passed by the learned Trial Court was affirmed.

The plaintiffs filed a suit to declare the sale deed dated 10.06.1991 (unregistered) pertaining to a room of House No. 34, admeasuring 20 ft. × 15 ft. = 300 sq. ft., situated at Village Banora, Tehsil and District Raigarh, null and void, inter alia, on the ground that the said property was ancestral property and without consent of the co-sharers, it was alienated by Ratnakar Panda in favour of defendants No. 5 & 6 through a registered sale deed dated 02.06.1958 (Ex. P/9). It is further pleaded defendants No.5 & 6 further alienated the property to defendants No. 1 to 3 through an unregistered sale deed dated 10.01.1999 (Ex. D/2).

The defendants filed their written statement and denied the plaint averments. They pleaded that the suit house was the exclusive property of Ratnakar Panda and he had right to alienate the same. It is also pleaded that the plaintiffs failed to challenge the sale deed dated 02.06.1958. It is pleaded that the plaintiffs had no right over the suit property, as the property was not a joint family property of the plaintiffs and Ratnakar Panda.

The Trial Court framed issues and held that Ratnakar Panda had acquired the suit house in partition and he had right to alienate it through registered sale deed. It further held that the suit does not suffers from non-joinder of necessary parties; proper court-fee was affixed and the suit was filed within limitation. It also held that the plaintiffs had no right over the property and sale deed dated 10.06.1991 would be binding on the plaintiffs and they are not entitled to relief of possession. Accordingly, the suit was dismissed. The learned Ist Appellate Court affirmed the findings recorded by the learned Trial Court and dismissed the appeal.

Mr. Rajesh Shukla, learned counsel appearing for the plaintiffs would argue that the suit house was ancestral property of the plaintiffs and Ratnakar Panda; and therefore, late Ratnakumar Panda had no authority of law to alienate the property without the consent of the co-sharers. It is submitted that there was no partition among the co-owners of the suit property and the defendants failed to adduce any evidence to prove partition by metes and bounds. It is further argued that as Ratnakar Panda had no authority to alienate the suit property, therefore, the subsequent alienation in favour of defendants No. 1 to 3 by defendants No. 5 & 6 is also bad in law and the learned Courts below committed error of law while deciding issues against the plaintiffs and thus, the present second appeal involves a substantial question of law.

On the other hand, Mr. Jaiswal, learned counsel appearing for the respondents would oppose and submit that there is concurrent finding of facts recorded by both the Courts below, and therefore, this second appeal deserves to be dismissed.

Heard learned counsel for the parties and perused the record.

On perusal of the documents filed by the plaintiffs, it is evident that a single document has not been placed to demonstrate that the suit house was recorded in the joint names of Ratnakar Panda and co-owners. The plaintiffs have exhibited the registered notice (Ex. P/1), Postal receipts (Ex.P/2); acknowledgment (Ex.P/3), minutes of meeting (Ex. P/4), a certificate (Ex. P/5), power of attorney (Ex. P/7), Panchanama (Ex. P/8), and the sale deed executed by Ratnakar Panda in favour of Raviratna Panda & Naminketan Panda dated 02.06.1958 (Ex. P/9); thus, perusal of the documents would show that the plaintiffs failed to prove that the the suit property was joint family property. In absence of any document showing joint ownership of the plaintiffs and Ratnakar Panda; the learned Courts below rightly dismissed the suit.

Accordingly, in my considered opinion, this second appeal does not involve any substantial question of law and same is hereby dismissed at admission stage itself.