Nisha Gupta, J. - (1.) THE instant second appeal has been filed against the judgment & decree dated 26/07/2010 passed by the court of learned Additional District Judge (Fast Track) No. 1, Dholpur dismissing Civil Regular Appeal No. 182/2007 preferred by original defendant -Janki Prasad Singhal and affirming the judgment & decree dated 19/07/2003 passed by the court of learned Civil Judge (Junior Division), Dholpur by which, the suit for partition has been decreed.
(2.) THE facts giving rise to this appeal in brief are that originally, suit has been filed by Rambabu Singhal. During pendency of the suit, he died and his legal representatives were brought on record. Original defendant was Janki Prasad Singhal. Both were brothers. It has been averred in the plaint that vide two separate sale -deeds dated 21/03/1961, the suit property has been purchased by Rambabu Singhal and Janki Prasad Singhal jointly from Gangaram and Mishrilal. It has been further pleaded that Gangaram and Mishrilal have mortgaged the suit property to Choteylal and Jagannath for the amount of Rs. 6100/ -. Thereafter, property has been redeemed by Rambabu Singhal and Janki Prasad Singhal and they became the joint owner of the property. Rambabu Singhal asked for partition, which was avoided by Janki Prasad Singhal. A notice was also sent and, thereafter, the suit for partition was filed. The contention of the defendant -appellant was that Rambabu Singhal has no share in the suit property. Janki Prasad Singhal is absolute owner of the property as on 05/09/1973, the firm Janki Prasad Rambabu has paid the mortgaged amount of Rs. 6100/ - and endorsement of the same has also been made on the back of the mortgage -deed hence, the firm has become owner of the property. Apart from it, one other firm was also in the name of Mohanlal & Sons between Rambabu Singhal and Janki Prasad Singhal, which was dissolved on 06/04/1976 for which, Rambabu Singhal has acknowledged the liability for payment of Rs. 30,000/ -, which was never paid and finally, in lieu of that amount, the property has been given to Janki Prasad Singhal and he became the absolute owner. After considering the rival contentions, the suit has been decreed and the appeal has also been dismissed. Hence, this second appeal. The contention of the learned senior counsel for the appellant is that both the courts below have misread the evidence, oral as well as documentary. On the endorsement regarding the redemption of the property, made on 05/09/1973, it is clear that mortgaged amount has been given by the firm. He who has redeemed the mortgage hence, firm is owner of the property and DW2 Banwarilal Sharma has also endorsed the same fact and when the property has been brought into partnership, it is the property of the partnership -firm and Rambabu Singhal has no right, title and interest in the property. Furthermore, it has been submitted that Janki Prasad Singhal has been examined himself, whereas due to death of Rambabu Singhal, his son Sunil has been examined and he was not having any personal knowledge about the true state of affairs hence, evidence of Janki Prasad Singhal should have been relied upon by the courts below and the findings of the courts below are perverse and courts below have misinterpreted the endorsement on Ex.A1 and Ex.A2 as regards to redemption of mortgage. Hence, the appeal be allowed.
(3.) PER contra, the contention of the counsel for the respondent is that it is admitted fact between the parties that suit property has been purchased in personal capacity by the original plaintiff and the original defendant. There is no iota of evidence that the property has been transferred in the name of firm or it has been included in the capital of the firm. Highest case of the appellant is that money for redemption of the property has been paid out of the firm account but other evidence shows that it has been debited in the accounts of the partners. Otherwise also, by only getting redemption, property could not be vested in the firm. Looking to the concurrent findings, which are based on right appreciation of the evidence, this second appeal is not maintainable. Hence, the same be rejected.;