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KANA RAM v SMT, KISTURI DEVI - CSA Case No. 270 of 2002  RD-RJ 278 (12 January 2007)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
Kana Ram. vs.
Smt. Kisturi Devi.
S.B.CIVIL SECOND APPEAL NO.270/2002
UNDER SECTION 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 21.10.2002 PASSED BY SHRI MURARI
LAL SHARMA, ADDITIONAL DISTRICT
JUDGE, DEEDWANA IN CIVIL APPEAL
DATE OF JUDGMENT ::: 12.1.2007
HON'BLE MR. PRAKASH TATIA, J.
Mr. Ashok Patel, for the appellant.
Mr. JR Beniwal, for the respondent.
BY THE COURT:
Heard learned counsel for the parties.
The appellant is aggrieved against the concurrent finding of fact recorded by two courts below in a suit filed by none else than the appellant's own wife respondent wherein the respondent submitted that she has half share in the suit property and the courts below declared her half share as she claimed.
It will be worthwhile to mention here that the respondent/plaintiff in her plaint very specifically pleaded that she may be declared owner of half of the property and that too which is on the eastern side of the plot and in which the plaintiff/respondent is residing. The appellant/defendant submitted written statement and admitted that the respondent/plaintiff is his wife. However, he levelled some allegations against the respondent/plaintiff which appears to be of not very serious nature but the appellant also submitted that the respondent submitted a petition under Section 125 Cr.P.C. wherein the matter was settled between the parties. So far as the property in question is concerned, it is not in dispute that in the registered sale deed, the names of the plaintiff and the defendant both have been shown as purchasers of the property. The defendant's plea is that the plaintiff executed an agreement on 6.2.1991 and relinquished her share in the property in favour of the defendant. Admittedly, the said deed is not registered one.
Learned counsel for the appellant vehemently submitted that the plaintiff, claiming herself to be co-owner of the property, has filed the suit for mere partition and in that, the trial court decreed the suit for specific portion. It is also submitted that it was not a suit for possession which is apparent from the plaint and it is also clear from the record that the appellant has not paid the court fees on the basis of her claim for declaration of her ownership right on the property in dispute nor she claimed possession of specific portion of the property by paying court fees.
I considered the submissions of learned counsel for the parties and perused the reasons given by the two courts below.
It is not in dispute that the sale deed is in the name of the plaintiff and the defendant both. The only plea of the defendant is that the plaintiff relinquished her share by unregistered deed and it is settled law that by unregistered deed, rights cannot be created and/or extinguished. So far as decree for specific portion is concerned, the plaintiff pleaded that she is in occupation of a specific portion and that is half part of the total house. This issue was raised specifically and two courts below have decided concurrently in favour of the plaintiff.
So far as question of declaration is concerned, it was absolutely irrelevant because in the sale deed, the plaintiff and defendant both have been shown as owners of half property each. Therefore, the plaintiff could have sought relief of partition and she could not have pleaded allotment of specific share in the property because of the fact that it is settled law that normally, the possession of the parties should not be disturbed and if disturbed, it should be minimum. In these circumstances, it is clear that the two courts below have not committed any error of fact or law.
In view of the above, I do not find any substantial question of law involved in this appeal.
Accordingly, this appeal, having no merit, is hereby dismissed.
(PRAKASH TATIA), J.
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