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Ramdhari v. Smt. Phulesari & Another - SECOND APPEAL No. 84 of 2007 [2007] RD-AH 1713 (2 February 2007)


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Court No. 24

Second Appeal No. 84 of 2007



Smt. Phulesari & another...................................... .....Respondents                                                    


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the parties.

This appeal challenges the judgment and decree dated 20.11.2006 passed by the lower appellate affirming the judgment of the trial court whereby the plaintiff-appellant's suit for declaration of a share in the disputed property and rectification of the sale-deed was dismissed.

The suit for the aforesaid relief was filed with this allegation that the property in question was to be purchased from the vendor in the joint names of plaintiff and defendant No.1, the money for which was contributed by the plaintiff from his self-earning. But by commission of forgery, the defendant No. 2 got the transfer of the property registered only in the name of his wife, the defendant No.1. The plaintiff is the half-sharer in the property and is entitled to that extent and it should be declared and the deed in question should be rectified.

The suit was contested by the defendants No. 1 and 2 by filing a written statement interalia pleading that the property was not purchased from the money sent by the plaintiff and instead it was purchased by the self-earned amount of defendants No. 1 and 2. The plaintiff did not have any share in it and the sale-deed as such is not liable to be rectified.

The trial court, on the pleadings of the parties, framed several issues and recorded its findings holding that the property in question is not joint of the parties and the plaintiff, having no share in it, is not entitled to the declaratory relief nor is capable of getting the sale-deed rectified. The trial court also held that since the property in question was finally adjudicated upon and entered into the name of defendant No.1, any claim therein through a Civil Suit is barred by Section 49 of U.P. Consolidation of Holdings Act. Accordingly, the suit of the plaintiff has been dismissed. Against this judgment and decree of the trial court, first appeal was preferred and having concurred with the findings recorded by the trial court, the lower appellate court also found that the property was not purchased with the joint money of the parties, rather there was no contribution at all in this purchase of the property from the side of the plaintiff. The plaintiff, having no title therein, was not entitled to the relief sought in the plaint. The finding recorded by the trial court was accordingly affirmed and the appeal has been dismissed, against which judgment, this second appeal has been brought before this Court.

The learned counsel appearing for the plaintiff-appellant submitted that the court below has not looked into the relevant piece of evidence made available in the case and as such the judgment of both the courts below are extremely erroneous and worth interference in this second appeal.

On a perusal of the judgments of the courts below it is found that there has been an elaborate consideration of the evidence led from the side of the parties in the trial court and the conclusions arrived at by the courts below are wholly in accordance with the said evidence. The findings are wholly factual regarding alleged contribution of the plaintiff towards sale consideration and these findings being of such nature there is no scope for an interference in a second appeal. Such factual findings cannot be said to be subject to interference before this Court under Section 100 of the Code of Civil Procedure. The courts below have concurrently held that the plaintiff did not make any contribution towards the purchase of the property in question and that he did not have any share in it. It is in this view that he was not found entitled to the declaratory relief sought in the plaint nor he was found entitled to the reliefs of rectification of the sale-deed or of permanent injunction as claimed by him. I do not find any justifiable ground to interfere against those findings of the courts below in this second appeal which is without any merit.

In the result, this appeal fails and is hereby dismissed at the admission stage itself.




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