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Virendra Singh Chauhan v. Chhatrapal & Others - SECOND APPEAL No. 641 of 2006  RD-AH 12954 (3 August 2006)
Court No. 24
Second Appeal No. 641 of 2006
Virendra Singh Chauhan Vs. Chhatrapal and others
HON'BLE UMESHWAR PANDEY, J.
Heard the learned counsel for the parties.
The lower appellate court has decreed the suit by the impugned judgment against the appellant-defendant holding that the defendant could not succeed in proving his case and the plaintiff's evidence actually was quite clinching as to prove his case before the court. In fact, the trial court had dismissed the suit of the respondent-plaintiff on the ground of one or the other minor mistake regarding the measurement of the land in suit, but that ground has been found quite flimsy by the lower appellate court. It has been held that the defendant who has come with a specific case that the total open land actually belonged to the defendant No. 1 who was the transferor of defendant No.2, was not at all proved on record. The appellant-defendant No. 2 filed his written statement taking a case that his transferor, the defendant No.1 had not given the total open land infront of his house in the family partition and as such he had transferred the same to defendant No.2, the appellant. This case had not at all been established from the record because no evidence worth the name was made available before the court by the defendant No.2. The defendant No.1 had not filed his pleadings nor he appeared in the witness box to prove the case taken by the appellant-defendant No.2. On the other hand, it has been the admitted case of defendant No.2 that the property of the family which also included the property in question had been subject of partition in the time of the plaintiff's ancestors and out of the total property half and half came to the respective shares to the plaintiff and the defendant No.1. Out of the half share of defendant No.1 this disputed open land too was a part of that land which was given to defendant No.1. This case taken by defendant No. 2 when did not get any support by one or the other cogent evidence, the appellate court has found the case of the defendant as wholly unproved and plaintiff's evidence has been, however, found to be satisfactory to prove his case. Accordingly, the appeal was allowed and the suit has been decreed.
From the aforesaid facts and circumstances, it so appears that in this second appeal there is no substantial question of law which might arise for decision and, therefore, the appeal as such cannot be admitted. The appeal is without substance and is hereby dismissed at the admission stage.
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