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Ram Chandra v. Rajendra Prasad & Others - SECOND APPEAL No. 701 of 2006 [2006] RD-AH 14551 (28 August 2006)


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Heard the learned counsel for the appellant.

This appeal has been preferred against the judgment and decree passed by the appellate court dated 20th July, 2006 partly granting the respondents' appeal and modifying the judgment of the trial court granting part decree of the partition suit of the appellant.

The appellant-plaintiff had claimed partition of his ½ share in the disputed property basing his claim on a will executed by his father and a sale-deed executed by his mother. The trial court had decreed the suit accepting the entire claim of the appellant-plaintiff, but on appeal the court below while partly reversing the trial court's judgment, found that the sale-deed in question which the plaintiff claims to have got executed by his mother was not validly proved on record. The mother, defendant No.3, had disputed the genuineness of that sale-deed on the ground that it was got executed through misrepresentation practised against her by her son, the plaintiff. Before entering into the evidence the plaintiff's mother Smt. Roopvati Devi had died and, therefore, her written statement as well as the affidavit filed by her had been treated by the lower appellate court as admissible piece of evidence under Section 32 of the Evidence Act. The plea of the appellant-plaintiff that the written statement had become redundant has been rightly rejected by the court below. The appellant did not prove the transaction of sale by cogent evidence as held by the lower appellate court. He did not produce the attesting witnesses of the sale while the genuineness of such transaction had been challenged by the executant of the sale document. Accordingly, the lower appellate court had not believed the transfer of 1/4th share in the disputed property in favour of the plaintiff by his mother as a genuine transaction. It is in the aforesaid view of the matter that the court below has partly allowed the appeal of the defendant and has decreed the plaintiff's suit only in part.

No substantial question of law appears to arise for decision in this second appeal as to occasion its admission. The judgment of the lower appellate court is wholly justified and, thus, is not challengeable in a second appeal. The appeal being not worth admission is hereby dismissed at the admission stage itself.




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