JUDGEMENT

Heard on the question of admission.

2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellants (hereinafter referred to as “plaintiffs”) against the respondents (hereinafter referred to as “defendants”) being aggrieved by the impugned judgment and decree dated 25/9/2021 passed by the Ist Additional District Judge, Lakhnadon, Distt. Seoni in RCA No. 17/2018 affirming the Judgment and decree dated 12/10/2017 passed by Ist Civil Judge, Class – II, Lakhnadon, Distt. Seoni in Civil Suit No. 23A/2015.

3. Plaintiffs have averred in the plaint that the suit land was the ancestral property of Late Lalman Gond, therefore, the burden to prove the suit property was ancestral property was on the plaintiffs but plaintiffs did not adduce any cogent and reliable evidence in this regard that the suit property was the ancestral property of Jheno and Lalman. From inception in 1962, when the suit property was purchased in the name of Jheno, the possession and the title have been shown in the revenue papers in favour of Jheno. There is no document on the record that such property was purchased from the funds of joint family. Even the formation of joint family is also not established in this case. What property of joint family of late Lalman and how that property has been obtained, is not cleared from the evidence adduced by the plaintiffs.

4. It is contended by the learned counsel for the plaintiffs that the property was purchased in 1962 in the name of Jheno, when Jheno was minor and it is actually purchased with the funds of ancestral property but it was to be established by the plaintiffs that Jheno had no source of income. Therefore, it was not possible for Jheno to purchase the property from his own fund.

5. On the contrary, Thakru (DW/2) has been examined on behalf of the defendants, who established the fact that Jheno was his nephew and he has purchased the land in the name of Jheno but Lalman’s name was depicted in the sale deed as guardian of the Jheno with a view to avoid any anamoly in official papers. It is also stated by this witness that Lalman was handicapped and unable to do any work or business.

6. It is also pleaded by the plaintiffs that in the year 2004-05, there was a partition between Jheno and plaintiffs namely Sumeri and Khimmu and each had 1/3rd share in the suit property and thereafter, they are cultivating their share of land. But, this contention is not found proved as neither any cogent and reliable oral evidence nor any documentary evidence has been adduced by the plaintiffs in this regard. No revenue paper, showing the possession of plaintiffs over the part of suit land, has been submitted by the plaintiffs and if the plaintiffs are having the property ground of partition in the year 2004-05, then there was no necessity to file the suit for seeking the relief of partition, only the relief of declaration and injunction was sufficient.

7. It is admitted by the plaintiffs’ witnesses that after the purchase of suit land in the year 1962, Jheno was continuously in possession of the suit land and cultivating the land and taking crops out of it. For the sake of argument, if it is assumed that late Lalman had purchased the property in the name of Jheno, even then, there will be a bar of the provisions of Benami Transaction Act.

8. The learned trial Court and first appellate Court have given their findings on the basis of the proper appreciation of the evidence on record and does not call for any interference.

9. In the light of the aforesaid discussion, no perverse finding was given by the trial Court or first appellate Court by decreeing the suit of the plaintiff and affirming it in first appeal respectively. No substantial question of law arises in this case. The Courts below neither ignored any material fact nor considered any inadmissible evidence and, thus, the concurrent findings of the Court below are not liable to be interfered with.

10. In the resu