JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Instant appeal is against the judgment and decree dated 07/02/2020 passed by the District Judge, Raipur in Civil Suit No. 60-A/2017 whereby suit preferred by the plaintiff/appellant claiming partition and cancellation of the sale deed was dismissed. Being aggrieved by such order, the present appeal.

2. Brief facts of this case are that, one Dr. Ramchandra Bagh, the father of defendant No.1 namely Arvind Bagh, defendant No.5 Prakash Bagh and defendant No.6 Smt. Vasanti Barhad Pandey purchased a property i.e. plot no.31 comprised in khasra No.305/2 admeasuring 80x50 sq.ft. by a sale deed dated 25/01/1969 (Ex.P-15). According, to the plaintiff, the house was constructed over the said plot in 1971. Subsequently, Dr. Ramchandra Bagh died intestate on 17/06/1977. Thereafter, on the said house, Usha Bagh wife of Dr. Ramchandra Bagh alongwith his son Arvind Bagh were residing. During her life time, Usha Bagh executed a sale on 19/10/2015 wherein Arvind Bagh, one of the son gave his consent. The sale deed was executed in favour of defendant No.2 Omprakash Ahuja, defendant No.3 Neeta Athwani, defendant No.4 Mohit Athwani. Usha Bagh died on 29/12/2016. After her death, the plaintiff sent a notice for partition but eventually having not been acceded, after exchange of notice, civil suit was filed on 25/11/2017 whereby Dr. Chandrakant Bagh demanded 1/4 share and for appointment of a commissioner to carry out partition. Further the prayer was also to the extent that sale deed dated 19/10/2015 be declared null and void. The prayer was also made that permanent injunction be granted in favour of the plaintiff that the nature of property should not be changed.

3. Arvind Bagh, defendant No.1 one of the brother denied the averments of plaint and stated that the entire suit property was bequeathed in his favour by Usha Bagh by a WILL and they were residing in the said house without any protest, as such, the plaint was liable to be rejected.

4. The purchasers No.2 to 4 namely Omprakash Ahuja (D-2), Smt. Neeta Athwani (D-3) & Mohit Athwani (D-4) denied the allegations of the plaint, however, they stated that before such purchase, the publication was made inviting objection in the local newspaper and the property since was recorded in the name of Usha Bagh, after due verification of the facts, since no objection was received, they purchased the property for a valuable consideration. It was further stated that since the property was originally that of the cooperative society, in the records of the cooperative society, the name of Usha Bagh was recorded, therefore they being the bonafide purchasers, no claim can be entertained against them.

5. Defendants No.5 and 6 namely Prakash Bagh and Smt. Vasanti Barhad Pandey, brother and sister supported the contention of the plaintiff to say that no consent was obtained before such sale by mother and the property was purchased by father. They further stated that they had also asked for partition but no heed was given by defendant No.1.

6. On the basis of the pleading of the parties, learned District Judge framed four issues and it was held against the plaintiff/appellant. The plaintiff on its behalf examined two witnesses and defendants examined four witnesses. The learned District Judge after appreciation of the evidence and the facts, dismissed the suit. Hence, this appeal.

7. Learned counsel for the appellant would submit that the property in question was purchased by Dr. Ramchandra Bagh who was the original owner and one of the co-owner has executed the sale in respect of the entire property and the plaintiff and the other brother and sister being not a party, the sale cannot be held valid to the extent over and above to the right held by late mother. He would submit that the plaintiff being the co-sharer, he was entitled for a partition, therefore the finding of the learned District Judge is completely perverse and cannot be sustained in the eyes of law.

8. Learned counsel for