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Dinesh Chandra Gupta v. Rakesh Chandra Gupta & Others - SECOND APPEAL No. 137 of 2006 [2006] RD-AH 2787 (7 February 2006)


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                           COURT NO. 54


Dinesh Chandra Gupta..............Plaintiff/appellant.


Rakesh Chandra Gupta and others...Defendant/respondents.

Hon. Mrs. Poonam Srivastava, J.

Heard Sri A.N. Mishra and Animesh Chetterji, Advocates appearing for the appellant.

The appellant instituted a suit for permanent injunction against the defendant/respondents in respect of the disputed house situated at Mohalla Kajalganj, Moradabad.  Claim of the plaintiff/appellant was that he had purchased the said house along with defendant nos. 2 and 3 in the year 1962.  The defendant no.3 died on 6.4.1997 during pendency of the suit.  Another suit no.612 of 1970 was instituted by father of the plaintiff and the respondent Ganga Sahai against the defendants, which was decreed on 9.10.1972.  After the decree for partition was executed, co-sharers are in possession of their respective shares.  After death of their father Ganga Sahai, they are owner in their own right.  The defendants tried to interfere in his peaceful possession and tried to break the wall, which led to institution of the instant suit. His father Ganga Sahai died on 28.12.1987.  Cause of action arose on 16.3.1990, when the defendants tried to break wall and usurp his portion, which was given to him in the execution of the decree of suit no.612 of 1970.  Claim of the plaintiff/appellant was disputed by the defendants by filing the written statement. The defendant no.1 filed a separate written statement.  The trial court framed as many as five issues.  Issue nos. 1 and 2 were as to whether, the plaintiff is entitled to one fourth portion of the disputed house and whether the portion shown in the plaint map by purple colour was of Ganga Sahai.  The trial court decided the two issues against the plaintiff and refused to grant a relief of injunction.  Accordingly, the suit was dismissed vide judgment and order dated 24.7.2004 by the Additional Civil Judge (Senior Division)/Judge Small Causes Court, Moradabad.  This order has been challenged in civil appeal no. 84 of 2004.  Claim of the defendants was accepted on the basis of registered gift deed, a certified copy of the same was brought on record vide paper no.31-Ga. The lower appellate court confirmed finding of the trial court, where the judgment and decree passed in original suit no. 405 of 1983 has been accepted and the concurrent finding of fact has been recorded that late Ganga Sahai was owner of the entire house and shop shown at the foot of the plaint and, therefore, he had full right to execute the gift deed and the sale deed.  The gift deed was executed in favour of his daughter-in-law Nira Gupta in the year 1988.  Consequently, she became sole owner of the disputed property.

Counsel for the appellant has challenged gift deed dated 15.3.1988, which is said to be as an inadmissible document.  Finding of two courts below is that the gift deed was a valid document.  Substantial question of law raised in the instant appeal is only in respect of the said gift deed, which has been believed by the courts below.  In view of the decisions of the Apex Court Alizan Mian Vs. Naro Dusada and others (2005) 12 SCC page 214, Goviadaraju Vs. Mariamman 2005 (2) SCC page 500, where it has been held that findings of fact cannot be interfered in exercise of power under Section 100 C.P.C. unless and until findings recorded are perverse i.e. based on failure of to take into consideration relevant evidence on record.  It is necessary that for such a question to "be involved in the case" there must be a foundation laid for it in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of fact, and it must be necessary to decide that question of law for a just and proper decision between the parties.

In the instant case, I do not find that any proper foundation has been laid for coming to such a conclusion. The courts have concluded on the basis of judgment and decree passed in suit no. 405 of 1983, which was brought on record and the defendants were declared as sole owner.    I do not find any illegality whatsoever.  Substantial questions of law raised in the instant appeal do not inspire admission especially in view of the guidelines laid down by the Apex Court regarding substantial questions of law.  The findings assailed by the learned counsel does not stand the test laid down to determine the substantial question of law.  In the instant case, facts and circumstances do not pass the aforesaid test laid down by the Apex Court.  It is thus, evident that no substantial question of law arises in the instant appeal.  The second appeal lacks merit and is, accordingly, dismissed.

There shall be no order as to costs.

Dt. 7.2.2006



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