Court No.37
Case :- SECOND APPEAL No. - 1409 of 2014 Appellant :- Kalawati Died And 2 Ors.
Respondent :- Shiv Govind And Another Counsel for Appellant :- Sanjay Tiwari,K.K. Tripathi Counsel for Respondent :- Syed Wajid Ali Hon'ble Siddhartha Varma, J.
This is a defendants' Second Appeal having been filed against the judgment and decree dated 22.9.2014 passed by the First Appellate Court by which the Trial Court's judgment and decree dated 5.8.2011 by which the Suit was dimissed, was set- aside and the Suit of the plaintiff was decreed.
The plaintiffs-respondents had filed a Suit for permanent injunction restraining the defendants from interfering with the suit property. The case of the plaintiffs was that one Ghunnu had two sons namely Mahadeo and Munni Lal and the plaintiffs were the sons of Munni Lal whereas the defendants were the descendants of one Ram Narain who had only been given a licence to stay in a portion of House No.C/122/26, Mohalla Muftipur, District Gorakhpur and that when the persons claiming through Ram Narain i.e. the defendant-Kalawati showed her intention to demolish a portion of the house then the injunction suit was filed. The plaintiff had claimed that the half portion of the house in dispute belonged to Mahadeo which he rightly willed to his grand-children (daughter's sons and one Mewa Lal) by a will dated 4.6.1980 and no one could have any right over the portion which belonged to the plaintiffs. The defendants, however, came up with a case that Mahadeo in fact was the sole owner of the property and that after he had willed half of the portion of the house on 4.6.1980 to his grand-children and Mewa Lal, he had further willed the property on 20.7.1982 to the defendant (now being represented by her sons).
The Trial Court framed as many as eight issues and issue no.1 was to the effect as to "whether the plaintiff was owner and in possession over half of the house no.C/122/26". This issue while was being decided, the Trial Court held that even though the father of the plaintiff Munni Lal and Mahadeo were real brothers but the house in question belonged to Mahadeo and that it was not an ancestral property and that Mahadeo could deal with the property in the manner he desired. The First Appellate Court after looking into the various evidence brought on record, came to a conclusion that the father of the plaintiffs Sri Munni Lal and his brother Mahadeo were brothers and that the property was ancestral and belonged to a common ancestor Ghunnu and, therefore, concluded that the plaintiffs were owners of half of the house in question. Further the Court after looking into all the evidence on record, documentary as well as oral, also found that the defendants were only licensees and had no right as such in the house in question. The suit was thereafter decreed and the defendants were directed to handover vacant possession of the disputed portion of the house no.C/122/26, Mohalla Muftipur, District Gorakhpur within thirty days from the passing of the judgment.
The instant Second Appeal was heard for admission. Learned counsel for the appellants questioned the manner in which the evidence was assessed by the First Appellate Court and also submitted that the plaintiff should have contested the suit on the strength of his own case and could not have depended on the weaknesses of the defendants' case. The respondents, however, supported the judgment of the First Appellate Court and submitted that the First Appellate Court was right in concluding that the house in question belonged to the two brothers namely Mahadeo and Munni Lal and that it correctly came to the conclusion that when ownership of Mahadeo was not being proved by any evidence whatsoever then the only irresistible conclusion was that the property was ancestral and it also concluded that as Mahadeo and Munni Lal were real brothers, the property belonged to the two brothers.
Learned counsel for the respondents also submitted that the First Appellate Court was right in saying that if the plaintiff's name was not to be found in any municipal records, it was also not clear as to how the name of Mahadeo was entered. He submitted that when Mahadeo was the Karta of the family, the brothers were joint owners, the finding as was arrived at by the First Appellate Court could not be interfered with. He further submitted that no substantial question of law has been raised by the appellant and, therefore, the appeal be dismissed.
Having heard learned counsel for the parties, I am not inclined to interfere with the findings of fact as have been arrived at by the First Appellate Court that the house was ancestral and that when Munni Lal, the predecessor in interest of the plaintiff and Mahadeo, the uncle of the plaintiff were real brothers then half of the house had to come in the share of the plaintiffs. As has been held in AIR 2019 SC 1441 : Gurnam Singh (D) by Lrs. & Ors. Vs. Lehna Singh (D) by Lrs., since no question of law is involved, the Second Appeal has to be dismissed.
Under such circumstances, no interference is required with the findings as have been arrived at by the First Appellate Court. No substantial question of law arises for consideration.
The Second Appeal is, accordingly, dismissed.
Order Date :- 30.05.2019 GS (Siddhartha Varma, J.)