Court No. - 26
Case :- SECOND APPEAL No. - 1096 of 2018 Appellant :- Purshottam And Another Respondent :- Naval Singh And 4 Others Counsel for Appellant :- Prakash Chandra Gupta,Vishal Khandelwal
Hon'ble Ajit Kumar,J.
Heard learned counsels for the parties.
This second appeal under Section 100 of Code of Civil Procedure, 1908 is directed against the judgment dated 25.08.2018 and decree dated 31.08.2018 passed by Additional District Judge, Court No. 18, Agra in Appeal No. 120 of 2013 confirming the judgment dated 17.05.2013 and decree dated 23.05.2013 passed by Additional Civil Judge (Jr. Div.), Court No. 1, Agra in Original Suit No. 152 of 2010.
According to the plaintiffs-appellants their case was for partition of suit property which admittedlywas devolved upon them from their ancestors. They set up claim that there was one house to half of that property, the plaintiff nos. 1 and 2 were entitled to extent of their share of their property. It was claimed that there had been no partition in the past.
However, in the written statement, the defendants who are real two brothers, contested the suit and denied plaint allegations. According to them, in respect of agricultural holdings, in respect of movable property and in respect of the house also there has already been a partition in the year 1990 and it is the contention that all the brothers are living separately in there respective portion of house. They are also paying separate electricity bills as having separate electricity connections.
In support of the plaint allegation, though the plaintiff No.1 had come into the witness box but the other plaintiff who is the real brothers did not enter the witness box. The only oral evidence in respect of the claim set up by the plaintiffs other than plaintiff No.1 was son of mother's sister. However, the trial court has not relied upon the testimony of PW-2 on the ground that from the statement as made in his testimony it is clear that even he was not aware about the real facts about family. The trial court concluded that two brothers and sisters have admitted the partition. Trial court has also concluded that primary burden to show that there is one house earlier no. 72 and 73 and now no. 170-A and 170-B are one and same house, having not been discharged and in the case it is admitted fact that the brothers were paying separate electricity bills and were having separate connection and were living separately in their respective portion of the house, the only inference could be drawn is that there was already partition amongst the brothers. It is an admitted fact that the brothers are also ploughing their agricultural fields independently in respect of their own shares only and they are also having separate kitchen.
In the facts and circumstances of the case, the trial court dismissed the suit. The concurrent finding has been returned by the lower appellate court.
Learned counsel for the appellants has however, argued that there is substantial question of law arising in this case because the burden has wrongly been shifted upon the plaintiff to prove that there was only one house with two separate numbers.
In the considered opinion of this Court, the primary allegation of joint property was of the plaintiff and therefore, it was a duty cast upon the plaintiff under the Indian Evidence Act to prove the plaint allegations in the first instance. Having not been able to discharge the burden, the onus could not be shifted upon the defendents to prove otherwise. The findings of fact with regard to family partition of the property has come to be concluded by both the courts below and therefore, I do not see any substantial question of law arising for consideration of this Court under Section 100 of Code of Civil Procedure, 1908.
Appeal lacks merit and is accordingly dismissed.
Order Date :- 27.10.2018 IrfanUddin