Suresh Kumar vs Shyam Kunwar

This appeal has been preferred by plaintiff-Suresh Kumar under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the

'C.P.C.'), questioning the legality and propriety of the judgment and decree dated 12.08.2013, passed by learned 5th Additional District Judge, Bilaspur in Civil Appeal No.13-A/2013, whereby the learned Appellate Court, while affirming the judgment and decree of the trial Court dated 09.04.2012,

passed in Civil Suit No. 28-A/2009, has dismissed the appeal.

Briefly stated the facts of the case are that the plaintiff instituted a suit claiming declaration of title and injunction by submitting, inter alia, that his

father namely, Sant Ram was possessing certain lands in village Tekari and after his death, he (plaintiff) came in possession thereof. It is pleaded in the plaint that the Defendant 1-Smt. Shyam Kunwar, who was the wife of his (Sant Ram) elder brother namely, Uttara Kumar, had left the village and got married to one Ram Swaroop, and therefore, Defendant-1 was not having any right or title over the property in question. Further contention of the plaintiff is that Defendant-1 had initiated a maintenance proceedings against her said husband (Uttara Kumar), in which, the compromise was arrived at and Sant Ram, the brother of the said Uttara Kumar, had executed a nominal sale in her (defendant 1) favour, though the possession of the suit property was not delivered to her. It is contended further that after obtaining the revenue papers mutated in her name based upon the alleged nominal

sale, the said defendant (Smt. Shyam Kunwar) was trying to alienate the same, therefore, the plaintiff has been constrained to institute a suit in the instant nature, instituted on 14.07.2008.

While contesting the aforesaid claim, it was pleaded by Defendant 1 (Smt. Shyam Kunwar) and Defendant 10-Dharmin Bai that by virtue of the

registered deed of sale dated 18.01.1983 and 27.01.1983, said to have been executed by said Sant Ram, the Defendant 1, has acquired her valid right,

title and interest over the property in question. Therefore, the suit as framed deserves to be dismissed.

Defendants 3 to 9 have supported the claim of the plaintiff.

After considering the evidence led by the parties, it was held by the trial Court that the property in question was purchased by Defendant-1 (Smt.

Shyam Kunwar) under the registered deed of sale dated 18.01.1983 (Ex.D-1) and 27.01.1983 (Ex. D-2) executed by said Sant Ram and the Revenue

Papers were also found to be recorded in her name. It was, accordingly, held that the alleged sale was not a nominal one as alleged by the plaintiff. In view thereof, the trial Court has dismissed the plaintiff's claim.

The aforesaid finding of the trial Court has been affirmed further by the lower Appellate Court in an appeal preferred by the plaintiff.

Being aggrieved with the aforesaid judgment and decree, the plaintiff has preferred this appeal. Learned counsel appearing for the

Appellant/Plaintiff submits that since the property in question was the ancestral property, as such, said Sant Ram was not authorised to alienate the

same. However, without considering the same in its proper manner, the Courts below have committed an illegality in holding that he was the owner of the suit property and thereby erred further in holding that the alleged sales were not a nominal one.

I have heard, learned counsel for the Appellant and perused the entire record carefully.

From perusal of the record, it appears that the registered deed of sale dated 18.01.1983 (Ex. D-1) and 27.01.1983(Ex. D-2) were executed by said

Sant Ram in favour of Defendant-1 (Smt. Shyam Kunwar). It appears further that the suit property was owned by said Sant Ram as the plaintiff has failed to establish the fact that it was the ancestral property held by him as alleged in the plaint. It appears further that after obtaining the alleged sales

(Ex. D-1 and Ex.D-2) the Revenue Papers were mutated in the name of Defendant-1 as reflected from the Revenue Papers marked as Ex.D-3 to

Ex.D-10. It appears further that the authenticity of the alleged sales were never questioned by the executor of it, i.e., Sant Ram, during his entire life,

and only after his sad demise in 1990, the instant suit has been instituted on 14.07.2008, much after the execution of the alleged sales.

In view of the aforesaid background, the Courts below have rightly arrived at a conclusion that the property in question was originally held by Sant

Ram and Defendant-1(Smt. Shyam Kunwar) has acquired her valid right, title and interest by virtue of the alleged sales, which were executed on

18.01.1983 (Ex. D-1) and 27.01.1983 (Ex.D-2), and I do not find any infirmity in the same.

Consequently, I do not find any question of law much less the substantial question of law which arises for determination in this appeal. The appeal

is, accordingly, dismissed, at the admission stage itself. No order as to costs.