Dismissed

Phul Kunwar and Others v. Madwari Ram and Others

Chhattisgarh HC7 Feb 2014SA/384/2004

Case brief

AI extract

What is this about?

Second Civil Appeal by husband and wife to challenge the dismissal of their suit seeking declaration that a sale deed was void. The High Court dismissed the appeal at the admission stage, holding that the lower courts' finding that the property was self-acquired of the venditioner was based on evidence.

What did the court decide?

Second Appeal was dismissed at the admission stage; no order as to cost.

Phul Kunwar and Others Vs Madwari Ram and Others — Property and Title | Chhattisgarh HC (2014)

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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR a^ Second Civil Appeal No. y6«v / 2004 APPELLANTS ,1. Phul Kunwar, Wife of Balam, aged PLAINTIFFS •about 63 years (Plaintiff no.l).

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2<.''£armeshwari, daughter of Balam,
.^^^aged about 38 yrs.
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(Plaintiff No.2)
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•.. ^y'J.'S>:"'"v(•' Bot'1 occupations - Agriculture,
'^ resident of village Parsa, Tahsil,
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Ambikapur, Distt. Surguja (C.G.)
<<»•^•'i^" VERSUS
RESPONDENTS/ 1 Madwari R.am, S/o. Bhaya Thakur,
,/DEFENDANTS < aged about 24 years.
(Defendant no.l)

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Balam Sai, S/o. Lagan aged about 73 yrs (Defendant no.2) Both occupation agriculture resident of village Parsa, Tahsil Ambikapur, Distt. Surguja (C.G.).

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SECOND APPEAL UNDER SECTION 100 OF CIVIL PROCEDURE CODE.

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Se'inn—^<~lrt*'i^^rr>^ttv'-Ai-

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HIGH COURT OF CHHATTISGARH

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Single Bench: Hon'ble Mr. Justice_^anj^y K. Agrawal

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Second Appeal No.384 of 2004

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APPELLANT

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Phul Kunwar and another

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Plaintiff

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VS.

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RESPONDENTS Madwari Ram & another.

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Defendants

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SECOND APPEAL UNDERSECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908

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Present: Shri Neeraj Choubey, counsel for the appellants.

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ORAL ORDER

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(Passed on 07.02.2'014)

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(1) Heard on admission. For sa'ke of convenience, the parties would be referred hereinafter as per their status. before the trial Court.

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(2) This is plaintiffs' Second Appeal filed under Section 100 of the Code of Civil Procedure (for short 'the CPC') against the judgment and decree dated 30.04.2004 passed by Second Additional District Judge, Ambikapur ih Civil Appeal No. 125-A/2002, affirming the judgment and decree^dated 2.7.2002 passed by Civil •Judge, Class II, Ambikapur in Civil Suit No. 2-A/2000, dismissing th.e plaintiffs' suit. (3) In a Civil Suit filed by plaintiffs namely Phul .Kunwar & Parmeshwari against defendant No. 2, who is

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husband of plaintiff No. 1-Phul Kunwar and father of plaintiff No. 2 Parmeshwari stating that the sale deed executed by defendant No. 2 Balram Sai in favour of defendant No. 1- Madwari Ram on 30.6.1996 be declared as null and void.

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(4) The trial court, having.found, plaintiffs failed to prove that suit property is not the self earned '2 property of defendant No. -Balam Sai, dismissed the SUlt .

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(5) First appeal preferred there-against was also dismissed by the appellate court vide judgment and decree impugned. Hence this Second Appeal.

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(6) Mr. Neeraj Choubey, learned counsel appearing for the plaintiffs would submit that concurrent findings recorded by both the courts below that plaintiffs have failed to prove that suit property is self earned property of defendant No. 2 Balam Sai is and that raises a substantial law perverse question of for determination in this appeal.

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7 I have heard learned counsel appearing for the appellant aa'ci perused the records of both the courts below including judgment & decree impugned. (8) A bare perusal of the plaint it appears that, in opening paragraph of the plaint it has been specifically av'erred by the piaintiffs that the suit 'is prpperty acquired and owned by defendant No. 2

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Balam Sai. Apart from this, no other averment has been made in the plaint that the suit property is inherited by defendant No. 2 from his ancestors. From the perusal of sale deedfEx. P-2) & Kistbandi Khafouni (Ex.P-3), which were produced by the plaintiffs in support of their case, it appears that the suit property is self acquired property of defendant No. 2 Balam Sai and t'hus, he has every right to seli the same to defendant No.1. Thus, the said findings recorded by both the courts below are finding of fact based on material available on record and I do not find it either perverse or contrary to record and no question of law much less substantial question of law is involved in this appeal. (9) Recently, the Supreme Court in the case of Vj.sbwana,tlt Agrawal, S/0 Sitaram Ag-rawal Vs. SarJa Vl.Blwraiia.th Agrawal has held that High Court should not disturb the concurrent finding of fact, unless find'ing recorded are perverse being based on no evidence. Para-36, 37 of report as under:-

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."3,-6. In Major Slngh Vs. Rattan Singh2 it has been observed that when the courts b^low had rej'«cted and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons giVen by the courts below are sustainable in law while hearing an appeal under Section 100 of the Co'de of Civil Procedure.

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'(2012)'7SCC 288

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(1.997) 3 SCC 546: AIR 1997 SC 1906

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In Vidhyadhan Vs. Manikrao it has • been ruled that the High Court in a second appeal should not disturb the concurrent findings of facf unless it is shown that the findings recoreded by the Courts below are pervere being based on no evidence or that on the evidence on record no reasonable could have person come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has^ been fortified by the decions of this Court in Atsd.ul Raheem V. Karnaraka Electricity Board ."

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(10) Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the courts below is.based on evidence, no substantial question of law is involved in this appeal, thus appeal deserves to and accordingly dismissed at admission stage itself. No order as to cost.

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Sd/-
SanjayK.AgrawaI
Judge

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(l999).3.SCC573 (2007) 14 SCC 138: AIR 2008 SC 956

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Wau'u>»;{UjW!UUK3miR;[.^?gj

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M.&

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Phul Kunwar and Others v. Madwari Ram and Others

Case brief

What is this about?

What did the court decide?

Phul Kunwar and Others v. Madwari Ram and Others

Case brief

What is this about?

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