Pankaj Mithal, J.@mdashHeard Sri V.C. Srivastava, learned Counsel for the Defendant Appellants. Sri K.M. Garg, appears for the Plaintiff Respondent No. 1.
2. Plaintiff Respondent No. 1 instituted a suit for recovery of possession of the suit property. The suit was dismissed by the court of first instance but in appeal the judgment and order of the trial court has been set aside and the suit has been decreed.
3. Aggrieved Defendants No. 1 to 3 and one Ashok Kumar Tyagi tenant who was subsequently impleaded have filed this appeal.
4.The aforesaid suit was filed on the allegation that the property in dispute which is described as Haveli was purchased by the father of the Plaintiff Respondent No. 1 Lallu Singh from the Government of India in an auction vide sale deed dated 8.9.1958. It was an exclusive property of the father of the Plaintiff Respondent No. 1 and had devolved upon him which the Defendant Appellants had no concern. On the other hand, the defence of Defendants No. 1,2 and 3 in the suit (herein Appellants No. 1,2 and 3) was that the aforesaid property was purchased by Lallu Singh out of the funds of the joint family property and as such they also have half share in the same. This has been acknowledged by Lallu Singh himself vide document No. Ka-90 dated 12.8.1968. The aforesaid Lallu Singh transferred his half share in favour of Km. Shahnaz on 5.8.1986 and now the Plaintiff Respondent has started claiming the other half share also.
5. The appellate court has returned a finding that the property which was purchased by Lallu Singh in the auction sale dated 8.9.1958 and the suit property is one and the same. The finding to the contrary recorded by the court of first instance was reversed. The parties are not in dispute that Lallu Singh had purchased the property in question in the auction sale from the Government of India. The parties are also agreeable that the dispute relates to the same property. In view of the above, the identity of the property is no longer material.
6. Admittedly, vide sale deed dated 8.9.1958 the property in dispute was purchased by Lallu Singh, the father of the Plaintiff Respondent and sale deed is in his exclusive name. It is the Defendants No. 1,2 and 3 who are alleging that it was purchased out of the joint family funds and as such they also have share in it and as such it is for them to prove that it was so purchased and they have acquired share in the said property. In this respect, Defendants No. 1,2 and 3 have relied upon the document Ka-90 which is executed on Stamp paper of Rs. 2.50 paise bearing the thumb impression of Lallu Singh. The said document states that the aforesaid property was purchased by him in his own name though his cousins have contributed towards half of the sale consideration and as such he has only half share in the same.
7. The said document has been disbelieved by the lower appellate court for various reasons. One of the reasons being that the Defendants No. 1,2 and 3 admitted that Lallu Singh used to sign the documents whereas the aforesaid document bears his thumb impression. The appellate court also held that it is on the basis of the aforesaid document that the Defendants No. 1,2 and 3 are claiming partition of the suit property. If that be so, the document requires registration and the aforesaid document not being registered can not be read into evidence.
8. In view of the aforesaid facts and circumstances the appellate court concluded that property in dispute was purchased by Lallu Singh in the auction sale from the Government of India on 8.9.1958. The Plaintiff Respondent No. 1 has acquired exclusive rights in the same. Defendants No. 1,2 and 3 could not prove that the property was purchased out of the joint family funds and they also have share in the same which has been partitioned.
9. In view of the aforesaid facts and circumstances, I am of the opinion that no error or illegality has been committed by the lower appellate court in allowing the appeal and decreeing the suit.
10. The appeal involves no substantial question of law worth consideration.
11. The appeal lacks merit and is dismissed.
