GOPI NATH Vs. SHIV PRASAD
LAWS(ALL)-2009-8-342
HIGH COURT OF ALLAHABAD
Decided on August 12,2009

GOPI NATH Appellant
VERSUS
SHIV PRASAD Respondents


Referred Judgements :-

STATE OF U.P. V. DHARAM PAL AND ANR. [REFERRED]
GOVERNMENT OF ANDHRA PRADESH VS. T M KRISHNAVENI [REFERRED]


JUDGEMENT

- (1.)Present second appeal has been filed against the judgment and decree dated 21.11.2006 passed by lower appellate court in Civil Appeal No. 34 of 1998, confirming the judgment and decree of trial court dated 31.08.1998 passed in civil suit No. 56 of 1993 Shiv Prasad v. Gopi Nath.
(2.)Brief background of the case is that the plaintiff- Shiv Prasad filed Original Suit No. 56 of 1993 against his brother, Gopi Nath, contending therein that the properties, which have been described in Schedule 'A' and Schedule 'B' of the plaint, situated in Mauza Kone, Pargana Aghori, Tehsil Robertsganj, District Sonbhadra, be partitioned to the extent of half share, as the said property had been purchased jointly by the plaintiff as well as defendant. It was contended that the defendant was illegally trying to usurp the same. Suit was contested by the defendant by contending that the property in question was his exclusive property and the plaintiff had got no share in the same; at the point of time when property was acquired, the plaintiff had no source of income nor had he spent any amount in the constructions etc. It was contended that the entire amount was given by him for purchase of the property and the plaintiff cunningly got his name also entered over the same. It was also mentioned that thereafter by way of mutual compromise respective share was relinquished after accepting Rs. 12,000/- and Rs. 8,000/- respectively. On the basis of the pleadings set up, in all, seven issues were framed. From the side of the plaintiff, plaintiff got himself examined as P.W. 1, Ram Nihor and Syed Irtza Hussain were examined as P.W. 2 and P.W. 3 respectively, and various documentary evidence were also filed. From the side of defendant, defendant got himself examined as D.W. 1. Ramesh Chand Gupta, Deo Nath Singh, Rajendra Prasad Tiwari, Harihar Prasad and Manoj Kumar Srivastava were examined as D.W.-2, D.W.-3, D.W.-4, D.W. -5 and D.W.-6, and various documentary evidence were also filed. Thereafter, trial court, after scrutinising the evidence, decreed the suit by directing that the plaintiff has got half share in the property in dispute and he is entitled to get the same partitioned. Aggrieved, the defendant preferred civil appeal, which has been dismissed. At this juncture, present second appeal has been filed. Record in question has also been summoned.
(3.)Sri Triveni Shankar, Advocate, appearing for the appellant, contended with vehemence that in the present case both the courts below have clearly misdirected themselves in decreeing the suit by ignoring this important aspect of the matter that by mutual agreement dated 03.04.1989, the plaintiff had relinquished his share in the property in question, and once it was relinquished by family members, then the said document in question was not required to be registered, as such the judgment and decree of the courts below are liable to be set aside.


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