Court No. - 23
Case :- SECOND APPEAL No. - 915 of 2018 Appellant :- Mohd. Aslam Respondent :- Ainul Haq Counsel for Appellant :- A.Z.Khan Counsel for Respondent :- Iqbal Ahmad
Hon'ble Rajiv Joshi,J.
Heard Sri A.Z. Khan, counsel for the appellant and Sri Iqbal Ahmad appearing for the sole respondent.
This is defendant's appeal under section 100,C.P.C. against the judgment and decree dated 31.5.2018 passed by the lower appellate court i.e. 13th Additional District Judge, Kanpur Nagar in Civil Appeal No. 5 of 2018, Mohd. Aslam Vs. Ainul Haq, by which the appeal filed by the defendant-appellant was dismissed affirming the judgement and decree of the trial court dated 13.1.2016 in Original Suit No. 2580 of 2009, decreeing the suit for partition filed by the plaintiff-respondent.
The facts as reflect from the record, are that the plaintiff- respondent filed a suit for partition and possession to the extent of 4/5th share in house no. 99/313, Kangee Mohal, Kanpur Nagar, out of total area of 134 sq. yards equivalent to 112 sq. meters.
The case of the plaintiff-respondent was that he purchased the property in dispute from the previous owner. Originally, the property belonged to one Haji Gulam Rasool, who had four sons namely Haji Habib, Haji Rafiq, Haji Abdul Rasid & Haji Abdul Latif and two daughters namely Anwari Begum and Kaniz Khatoon. After the death of Haji Gulam Rasool, all his heirs got 1/5th share each since as per Sunni law, the share of two daughters namely Anwari Begum and Kaniz Khatoon, became one part. Subsequently, five different sale deeds were executed by the heirs of deceased Haji Gulam Rasool in favour of the plaintiff, on the basis of which he claimed 4/5 share in the house in the house in question. The plaintiff-respondent in the plaint admitted the defendant-appellant to be the owner of 1/5th share in the house in question which he had purchased from Haji Habeeb son of Haji Gulam Rasool.
The suit was contested by the defendants by means of the written statement in which the fact regarding execution of the above sale deeds in favour of the plaintiff-respondent, was not disputed although it was pleaded that out of the total area of the house in question, an oral gift was made by Smt, Kakko, daughter of Haji Rafeeq in regard to her share of seven square meters in favour of the defendant-appellant.
On the basis of the pleadings of the parties and the evidence on record, the trial court while deciding issue no. 1, came to the conclusion that the defendant-appellate has failed to establish the factum of oral gift regarding seven square meters in his favour and thus he was held to be the owner of 22 square meters only in the house in question and accordingly the suit of the plaintiff-respondent was decreed. Against the judgment and decree of the trial court, the defendant-appellant preferred an appeal which too has been dismissed by the lower appellate court by the impugned judgment and decree dated 31.5.2018.
The contention of the learned counsel for appellant that oral gift deed has illegally been disbelieved by the courts below without framing any issue in that regard, has no substance as claim of the appellant in this regard has been considered in the impugned judgments and a specific finding has been recorded that he has not been able to prove the oral gift regarding seven square meters in his favour. Further, the counsel for the appellant has not been able to show that any application was moved by the defendant-appellant for framing of an issue in this regard.
There are concurrent findings in regard to execution of sale deeds in favour of the plaintiff-respondent and his share to the extent of 4/5th in the house in question. Further, the oral gift as set up by the defendant has not been proved by any evidence.
The matter being concluded by the concurrent findings of fact, there is no scope for any kind of interference under section 100,C.P.C. There appears to be no illegality or infirmity in the orders impugned in the facts and circumstances of the case nor any substantial question of law is involved in the matter.
Consequently, the appeal fails and is accordingly dismissed in limine.
Order Date :- 28.11.2018 SNT/