Advocates:
['AWADH TRIPATHI', '', 'INDIRA TRIPATHI', 'Vivek kumar tripathi', 'WASIM MIYAN', 'Manoj Paranjpe', 'Priyanka Mehata', 'Vaibhav A Goverdhan', 'Vikram Dixit', 'Prasoon Agrawal Cavater']

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FA No. 370 of 2017

Reserved on : 06.09.2019

Delivered on :

04

.10.2019

Balbir Singh Flora, S/o Late Ujagar Singh Flora, R/o B.S. Electrical

Engineering, T.P. Nagar, Korba, District- Korba (C.G.)

---- Appellant

Versus

Gurudev Singh Flora, S/o Late Ujagar Singh Flora, aged about 59 years, R/o

G.S. Engineering, T.P. Nagar, Korba, District- Korba (C.G.) ---- Respondent

_____________________________________________________________

For Appellant

:

Mr. Awadh Tripathi, Advocate.

For Respondents

:

Mr. Manoj Paranjpe & Mr. Shubhank

Tiwari, Advocates.

_____________________________________________________________

Hon'ble Shri Justice

Ram Prasanna Sharma

CAV JUDGMENT

1.

This first appeal is preferred under Section 96 of the Code of Civil

Procedure, 1908 against judgment/ decree dated 25.07.2017 passed

by District Judge, Korba (C.G.) in Civil Suit No. 08A/2010, wherein the

said court decreed the suit filed by the respondent/plaintiff for

declaring title of plot No. 86, area 3000 sq.ft. situated at Transport

Nagar, Korba and for delivery of possession of land/ house area 25 x

50 i.e. 1250 sq.ft. mentioned in Schedule-A of the plaint.

2.

As per case of the respondent/ plaintiff, he purchased the land/plot

No. 86 area 3000 sq.ft. from Special Area Development Authority

Korba on 30.09.1981 and on 04.05.1984 after due sanction of map

and permission, constructed shop and hall. The length of disputed hall

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is 25 x 50 i.e. 1250 sq.ft. As per the plaint averment, appellant/

defendant is younger brother of the respondent that is why the

respondent provided the hall to the appellant for purpose of starting

business with a condition that whenever the respondent requires the

aforesaid hall, the appellant shall hand over the possession to him,

but on demand, the appellant did not vacate the premise in question

that is why a legal notice was issued to him on 16.04.2010. The same

is not responded that is why suit was filed before the trial court and as

per the appellant, the said court decreed the suit contrary to the

factual matrix and legal aspects of the matter.

3.

Learned counsel for the appellant submits as under:-

(i)

The appellant and the respondent are members of undivided

Hindu family and family partition did not take place between them. The

property in question and other property were purchased in the name

of the respondent by earning of undivided Hindu family.

(ii)

The property in question is property of partnership firm namely

M/s G.S. Engineering in which the respondent and his mother are

partners, therefore, finding of the trial court is not correct that the

property is owned by the respondent.

(iii)

When the property is the firm property, it is handed over to the

appellant in which the appellant is also having share, therefore, the

finding arrived at by the trial court is liable to be set aside.

4.

On the other hand, learned counsel for the respondent submits as

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under:-

(i)

There is no presumption of property being joint family property

only on account of existence of joint Hindu family. The one who

asserts has to prove that the property is a joint family property.

(ii)

In the present case, the appellant has failed to discharge initial

burden of establishing that there was any nucleus in the form of any

income.

(iii)

There is nothing on record that any member of the family

possessed the joint property, therefore, the trial court is right in holding

that it is a property of the respondent alone.

(iv)

In the present case, the appellant has failed to bring counter

claim for partition on the basis of documentary evidence. The property

is solely acquired by the respondent, therefore, the finding arrived at

by the trial court is not liable to be interfered with invoking jurisdiction

of appeal.

5.

Learned counsel for the respondent placed reliance in the matter of

D.S. Lakshmaiah & another Vs.