1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-
original plaintiff to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Junior Division), Idar dated 28/02/1984 in Regular Civil Suit No. 126/1974 by which the learned trial Court has dismissed the said suit filed by the appellant-original plaintiff for declaration and permanent injunction as well as the impugned judgment and order passed by the learned appellate Court-learned Assistant Judge, Sabarkantha at Himatnagar dated 31/08/1987 in Regular Civil Appeal No. 17/1984 by which the learned appellate Court has dismissed the appeal preferred by the appellant-original plaintiff confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The appellant-original plaintiff instituted Regular Civil Suit No. 126/1974 in the Court of learned Civil Judge (Junior Division), Idar against the respondents-original defendants for partition of the suit property and for recovery of possession of the suit property, which was declared by him to be his share. It was the case on behalf of the appellant-original plaintiff that he and respondent no. 1 are real brothers, respondent no. 2 is the step brother and respondents nos. 3/1 to 3/9 are the heirs of the deceased Galajibhai Ramabhai, who was original defendant no. 3 and he died pending the suit. The agricultural land of village Movatpura was entered in the name of his father and the agricultural land remained in the name of his father till 20/08/1973. It was the case on behalf of the appellant-original plaintiff that in the year 1948 his father suffered from serious illness and the appellant-original plaintiff and respondents nos. 1 and 2 were his only heirs and, therefore, he handed over the agricultural land to the brothers and deceased-original defendant no. 3 and kept 3 Acres and 18 Gunthas of land of village Samiya for the purpose of his own maintenance. It was the case on behalf of the appellant-original plaintiff that the Survey numbers mentioned in the plaint in paragraph 2 have been handed over to the appellant-original plaintiff and respondents nos. 1 and 2 on permanent basis with the right of ownership since 1945 and the those lands are being cultivated jointly and taken care of. It was the case on behalf of the appellant-original plaintiff that well has also been dug from the joint expenses of the brothers and they are dividing the expense of taking water from the well. It was the case of the appellant-original plaintiff that all the brothers are doing agricultural work alongwith service. The appellant-original plaintiff is serving as a priest, respondent no. 1 is serving as a teacher in Misionary school of village Bildiya and respondent no. 2 is serving in Police Department at Ahmedabad. It was alleged by the appellant-original plaintiff that he was giving his services as a priest in Biladiya Mission and, therefore, he was managing the affairs of the Mission. Thereafter, the management of primary school has been handed over to the Government from 05/02/1973. It was the case on behalf of the appellant-original plaintiff that as respondent no. 1 was the Head Master of the said school he was aggrieved by such action and, therefore he opposed the said action as the said action has caused damage to his personal interest and, therefore, he was disappointed and it caused enmity between brothers and in order to take revenge of the said action, respondent no. 1 had taken his step mother and step brother into confidence and in order to protest the right of the appellant-original plaintiff in the agricultural land, which is in the name of the father, which has been entered into their names, vide mutation entry No. 304 with respect to Survey No.
262 of village Dadvav, which has been posted on 29/08/1973 and mutation entry no. 120 with regard to the land of Mahatpura, which is posted on 20/08/1973, both respondents nos. 1 and 2 have taken undue advantage of the ill health and weak mind of his father. It was the case on behalf of the appellant-original plaintiff that if his father has made any affidavit with regard to such an action that it is false and the action of his father is without any understanding and without having any right, it is not binding to him. It was the case on behalf of the appellant-original plaintiff that by posting of such entries, the right of the appellant-original plaintiff has not affected. It was the case on behalf of the appellants-original plaintiffs that the respondents have intention to snatch away the right of the appellant-original plaintiff. On knowing this information, the appellant-original plaintiff had sent notice on 30/08/1973 by Registered Post A.D. demanding his 1/3rd share, but that notice was refused by them. The suit was filed for partition and to obtain his1/3rd share and to take possession of the land of his share. The appellant-original plaintiff has claimed relief that the suit Survey No. mentioned in the plaint in paragraph 2 be divided in 3 equal shares and the possession of the land of his 1/3rd share be given to him and he should also be awarded mesne profit from the year 1973.
3. The suit was resisted by respondents nos. 1 and 2 by filing written statement at Exhs. 1 and 14. It was the case on behalf of the respondents-original defendants that in fact original defendant no. 3 executed the gift deed on 05/06/1974 and the said property was given to original defendants nos. 1 and 2. Original defendant no. 3 filed the written statement at Exh. 15 wherein he denied all the contentions and allegations made by the appellant-original plaintiff. It was stated that he is the owner and occupant of the suit property and original defendants nos. 1 and 2 used to assist him in agricultural work. It was specifically denied that the suit property was purchased from the income of the appellant-original plaintiff as alleged. It was stated that the suit property has been handed over and/or given to original defendants nos. 1 and 2 by registered gift deed dated 05/06/1974. The learned trial Court framed necessary issues. Both the parties led the evidence, documentary as well as oral and on appreciation of evidence, the learned trial Court dismissed the suit and refused to pass the decree by observing that the appellants-original plaintiffs has failed to prove that the suit property was purchased from his income. The learned trial Court also found that the appellant-original plaintiff has failed to prove that the deceased father has handed over the property to his sons in his old age keeping 3 Acres and 18 Gunthas for his maintenance. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court the appellant-original plaintiffs preferred Regular Civil Appeal No. 17/1984 before the learned District Court, Sabarkantha at Himatnagar and the learned appellate Court-learned Sessions Judge, Sabarkantha at Himatnagar by impugned judgment and order has dismissed the said appeal confirming the judgment and decree passed by the learned trial court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below the appellant-original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
4. Shri Saurabh Mehta, learned advocate appearing on behalf of the appellant-original plaintiff has vehemently submitted that both the Courts below have materially erred in not believing that the suit property was purchased from the income of the appellant-original plaintiff. It is further submitted that both the Courts below have materially erred in not properly appreciating the evidence adduced by the respective parties. Making the above submission, it is requested to allow the present Second Appeal. No other submissions have been made.
5. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned judgment and orders passed by both the Courts below and the evidence on record from the Record and Proceedings, which has been received from the learned trial Court, it appears that there are concurrent findings of fact given by both the Courts below that the appellant-original plaintiff has failed to prove that the suit property in question was purchased by the father from the income of the appellant-original plaintiff. The said finding of fact are on appreciation of evidence, which are not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
6. Even otherwise, on considering the entire evidence on record, this Court is also of the opinion that the appellant- original plaintiff has failed to prove that the suit property in question was purchased by the father, which was admittedly in the name of the father, from the income of the appellant- original plaintiff and, therefore, when the property was purchased by original defendant no. 3 and when he gave the suit the land in question to the original defendants nos. 1 and 2 by registered gift deed dated 05/06/1974, it cannot be said that both the Courts below have committed any error and/or illegality in refusing to the decree for partition with respect to the suit land. It is also required to be noted that as such the appellant-original plaintiff had not challenged the registered gift deed, which was executed by original defendant no. 3 in favour of original defendants nos. 1 and 2. Under the circumstances, no illegality has been committed by the learned Judge in dismissing the suit, which has been rightly confirmed by the learned appellate Court.
7. In view of the above and for the reasons stated hereinabove, the present Second Appeal deserves to be dismissed and is accordingly dismissed. No cost.
(M.R. SHAH, J.) siji