ANIL KUMAR SHARMA Vs. LONGSHREE

JUDGEMENT

(1.) THIS appeal under section 100 CPC by the plaintiff is directed against the concurring judgment and decree dated 24/02/2006 passed in civil appeal No. 27A/2005 by VII Additional District Judge (Fast Track) Gohad District Bhind affirming the judgment and decree dated 01/08/2005 passed in civil suit No. 101A/2003 by II Civil Judge, Class -II, Bhind, District Bhind whereby plaintiff's suit for declaration and permanent injunction and further declaration that sale deed dated 04/12/1998 executed by defendant No. 1 in favour of defendant No. 2 be declared null and void has been dismissed.

(2.) FACTS necessary for disposal of this appeal in a nutshell are to the effect that plaintiff and defendant No. 2 are real brothers and defendant No. 1 is their mother. All the three are successors of late Mahavir Prasad in relation to certain parcels of agricultural land in village Badori, Tahsil Ater, District Bhind falling in different survey numbers as detailed in paragraph 3 of the impugned judgment of the first appellate Court (hereinafter referred to as 'the suit land'). The aforesaid suit land being joint Hindu property, each of them have equal shares, i.e., 1/3rd each. It is also alleged that out of the aforesaid suit land, land falling in survey No. 409 admeasuring 0.470 hectare has been sold vide registered sale deed dated 19/06/1989 and the sale proceeds have been deposited in State Bank of Indore, Branch Bhind. The defendant No. 1 has purchased certain agricultural holdings in village Gada, Tahsil Ater, District Bhind out of the fund of joint Hindu family property. It is further alleged that defendant No. 1 has no exclusive right to execute the sale deed dated 04/12/1988 in favour of defendant No. 2 and, therefore, the sale deed is null and void as according to plaintiff there is no partition effected amongst the three of them and, therefore, she has no right to sell her alleged share out of the suit property. With the aforesaid averments, plaintiff has filed the suit for declaration and permanent injunction and the further declaration that sale deed dated 04/12/1998 executed by defendant No. 1 in favour of defendant No. 2 be declared null and void.

(3.) TRIAL Court based upon the aforesaid pleadings had framed issues and allowed parties to lead evidence. Trial Court on critical evaluation of oral and documentary evidence brought on record has dismissed the suit. On appeal, the first appellate Court has again re -appreciated the entire oral and documentary evidence on record and in paragraphs 16 and 17 of the impugned judgment, it has been found that the basic issue relates to suit land falling in survey No. 409 which was jointly owned by plaintiff and defendants No. 1 and 2 and sold vide registered sale deed dated 19/05/1989 and the agricultural holding purchased by defendant No. 1 in village Gada is out of the said sale proceeds. Plaintiff claimed that the consideration of the aforesaid land was Rs. 60,000/ - and deposited the same in State Bank, Branch Bhind on 19/05/1989 in the account of defendant No. 1, Longshree whereas defendants' No. 1 and 2 asserted that the land falling in survey No. 409 was not sold for Rs. 60,000/ - but the sale consideration is Rs. 17,000/ - and each one of them got apportioned their shares out of Rs. 17,000/ -. On critical examination of the oral and documentary evidence on record, first appellate Court has arrived at a conclusion that there is nothing on record to establish claim of the plaintiff that suit land falling in survey No. 409 was sold for a consideration of Rs. 60,000/ -. The plaintiff further failed to bring on record any document, much less bank account number and its statement to show that the aforesaid claimed sale consideration of Rs. 60,000/ - has been deposited in the bank account of defendant No. 1 and also failed to disclose any justifiable reason for non -production of the material documents to prove his own case. Besides, there is nothing on record to establish that the defendant No. 1 has purchased the agricultural holding in her own name in village Gada on behalf of joint Hindu family out of the joint Hindu family property whereas she claimed that she has purchased the said agricultural holding on 04/06/1990 and 25/07/1991 out of the income earned to the extent of her sher from joint Hindu family property together with stridhan for which she is exclusive owner and in possession. The defendant No. 1 has executed sale deed as regards self -acquired property in favour of defendant No. 2 vide registered sale deed dated 04/12/1998. With the aforesaid findings, the first appellate Court has affirmed the judgment and decree passed by the trial Court.