High Court Of ChhattisgarhSA/383/2008dismissed

Balram Singh v. Purushottam

2020-02-19Hon'Ble Shri Justice Sanjay K. Agrawal11 pages

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 383 of 2008

1. Balram Singh, S/o Late Pancham Singh, Aged 63 years.

2. Jagannath Singh, S/o Late Pancham Singh, Aged 60 years.

3. Makhan Singh, S/o Late Pancham Singh, Aged 52 years.

4. Ishwar Singh (died and deleted).

5. Vidyadhar S/o Late Pancham Singh, Aged 44 years.

6. Krishna Kumar S/o Late Bhagwat Singh, Aged 53 years.

All R/o Village Petoli, Tahsil and P.S. Kanker, Distt. Kanker, Chhattisgarh.

--Appellants/Plaintiffs

Versus

1. Purushottam S/o Late Damodar, Aged 64 years.

2. Prabhat S/o Late Gayadhar Singh, Aged 37 years.

3. Omprakash S/o Late Gayadhar Singh, Aged 35 years.

4. Kishore S/o Late Gayadhar Singh, Aged 34 years.

5. Santosh S/o Late Gayadhar Singh, Aged 31 years.

6. Kiran S/o Late Gayadhar Singh, Aged 29 years.

7. Ravindra Singh S/o Late Rajendra Singh, Aged 40 years.

8. Nilambar Singh S/o Late Rajendra Singh, Aged 38 years.

9. Jamuna W/o Late Gayadhar Singh, Aged 50 years.

(Sl. No. 1 to 9 R/o Village Petoli, P.O. Murdongri, Tahsil and Distt. North Bastar, Kanker, Chhattisgarh.

10.Tileshwari D/o Late Gayadhar Singh, Aged 32 years. 11.Chandramani W/o Chandradhwaj, Aged 45 years. (Sl. No. 10 and 11 R/o Village Karatikli, P.O. Amtha, Distt. Kalahandi Orissa.) 12.Rukmani W/o Late Suresh Samant (died) through LRs. :- (a). Udit Kumar S/o Late Suresh Samant, Aged about 55 years.

(b). Ajit Kumar S/o Late Suresh Samant, Aged about 53 years.

(c). Saubhagya Manjri D/o Late Suresh Samant, Aged about 51 years.

(d). Ratnaprabha Devi, D/o Late Suresh Samant, Aged about 48 years.

(e). Narayan Prasad Samant, Aged about 45 years. (f). Rakesh Kumar S/o Late Vibhuti Deo, Aged about 25 years.

R/o Samant Quarter, Talcher, P.O. Talcher, Distt. Angul Orissa.

13. Saraswati W/o Umashankar (died) through LRs. :- (a). Durga Das, Aged about 55 years, S/o Umashankar Singh, R/o Village Kodobhata, P.O. Mahaling, Distt. Kalahandi, Orissa.

(b). Madhav Ram, Aged about 53 years, S/o Umashankar Singh, R/o Village Kodobhata, P.O. Mahaling, Distt. Kalahandi, Orissa.

14.Laxmi W/o Mohan Singh, D/o Late Damodar Singh, Aged 65 years, R/o Village Khedapara, P.O. Therubali, Distt. Koraput, Orissa.

15. State of Chhattisgarh, through the Collector, Kanker, Distt. North Bastar, Kanker, Chhattisgarh. --- Respondents/Defendants For Appellant :- Mr. Ravindra Agrawal, Advocate For State :- Mr. Anshuman Rabra, Panel Lawyer Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 19/02/2020 1.Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/plaintiffs under Section 100 of the CPC against the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree by which the trial Court dismissed plaintiffs' suit for declaration of title, partition and possession of suit land admeasuring 10.720 hectares situated at village Petoli, 11.96 hectares situated at village Tanhkapar, 7 hectares situated at village Muragaanv and 0.360 hectare situated at village Maandri as shown in Schedule 'A' annexed with the plaint.

2.The following genealogical tree would demonstrate the relationship between the parties :- Somchandra Singh Damodar Singh Bhagwat Singh Pancham Singh Krishna Kumar Laxman Singh Shatrughan P6 P7 Balram Ishwar Jagannath Singh Vidyadhar Makhan P1 P2 P4 P5 P3 Gaya Singh Rajendra Singh Rukmini Saraswati Purushottam Laxmi D1 D14 D13 D15 Haripriya Meena Ravindra Singh Nilambar Singh D7 D8 Premsheela Jamuna (first wife) (second wife) D9 D10 Chandramani Santosh Kishore Omprakash Prabhat Kiran Tileshwari D5 D4 D3 D2 D6 D11

3. Suit land was originally held by Somchandra Singh. He had three sons namely Damodar Singh, Bhagwat Singh and Pancham Singh. Plaintiffs are the sons of Bhagwat Singh and Pancham Singh

whereas defendants are sons, daughter and grandsons of Damodar Singh. Plaintiffs, being the successors in interest of Bhagwat Singh and Pancham Singh, filed a suit for declaration of title, partition and possession stating inter alia that suit land shown in Schedule 'A' annexed with the plaint situated at four villages namely Petoli, Tanhkapar, Muragaanv and Maandri, Tahsil Kanker was the joint family property of all the three brothers namely Damodar Singh, Bhagwat Singh and Pancham Singh and no lawful partition of the suit land has taken place between them, therefore, they are entitled for 1/3rd share in the suit land as defendants' predecessor in title Damodar Singh sold some part of suit land during his lifetime and cause of action arose on 14/03/2003.

4. Defendants filed their joint written statement and set up a defence that partition has already taken place amongst their predecessor in title Damodar Singh and plaintiffs' predecessors in title Bhagwat Singh and Pancham Singh and pursuant to the partition, they are in possession of their respective shares and a document was also executed with that regard which is in possession of the plaintiffs and they have

admitted the said fact in the proceeding before the Tahsildar on 20/02/2004 and have given the description of the land which fell in their respective shares.

5. Learned trial Court, upon evaluation and appreciation of oral and documentary evidence on record, dismissed the suit holding that suit land was partitioned in the year 1944-45 amongst Damodar Singh, Bhagwat Singh and Pancham Singh and plaintiffs have no right and title over the suit land, therefore, they are not entitled for any relief as claimed by them in the suit which was affirmed by learned first appellate Court in the appeal preferred by the plaintiffs holding that pursuant to the partition held in the year 1944-45, they are in separate and cultivating possession of their respective shares of the suit land and moreover, the partition held in the year 1944-45 has not been challenged by any of the parties and it is not the case of the plaintiffs that partition is unjust, unfair and detrimental to their interest. Learned first appellate Court further held that plaintiffs' suit is barred by limitation.

6. Mr. Ravindra Agrawal, learned counsel for the appellants/plaintiffs would submit that both the

Courts below have concurrently and legally erred in holding that partition has already taken place amongst Damodar Singh, Bhagwat Singh and Pancham Singh pursuant to which they are in separate and cultivating possession of their respective shares alloted to them during the partition held in the year 1944-45. The finding recorded by both the Courts below holding that suit land has already been partitioned amongst the parties in the year 1944-45 is a finding of fact which is perverse and contrary to the record, as such, the appeal deserves to be admitted by formulating substantial question of law in this regard.

7. Both the Courts below have concurrently held that partition has taken place amongst the three brothers namely Damodar Singh, Bhagwat Singh and Pancham Singh and thereby, dismissed the suit of the plaintiffs.

8. From a careful perusal of the evidence adduced on behalf of the plaintiffs, it would appear that Makhan Singh (P.W. 1) in paragraph 5 of his statement has clearly admitted that partition has taken place amongst the three brothers namely Damodar Singh, Bhagwat Singh and Pancham Singh and as per the said partition, plaintiffs are in cultivating possession of the land situated at

Village Petoli. In paragraph 10 he has also stated that during the lifetime of his father Pancham Singh, he did not challenge the mutation proceeding in the name of Damodar Singh.

9. Similarly, Purushottam (P.W. 2) in paragraph 1 of his cross-examination has stated that in the year 1944-45, the three brothers i.e. Damodar Singh, Bhagwat Singh and Pancham Singh have partitioned the suit land village-wise by allotting separate shares in the four villages and according to said partition, they are staying in the villages which fell in their share in the partition. In paragraph 2, he has also admitted that in Village Petoli, all the three brothers have got their share and he also detailed the land alloted to all the three brothers in each of the village.

10. Likewise, Krishna Kumar (P.W. 3) in paragraph 7 has admitted that partition took place amongst Damodar Singh, Bhagwat Singh and Pancham Singh. As such, there is a clear-cut admission made on behalf of the plaintiffs in their statements before the trial Court accepting the stand of the defendants which learned trial Court has accepted by recording the finding in paragraph 26 of its judgment which states as under :-

"26.

ससककययकक अनससर1944-45 मभसगवत, दसममदरएव पवचमससवहकक मधयजमबटवसरसहआथस, उसकककलखसपढ़ढ़भढ़ हईथढ़, जमजगनसथकक पससह।ऐसढ़कसतकथमवसदढ़गणकम चसकहयक थस कक बटवसरस सवबवधढ़ कलखसपढ़ढ़ कम नयसयसलय म पकश करतक।इससवबवधमकदनसवक28/6/06 कमआदकशपसररतककयस जसकरवसदढ़गणकमदसतसवकजपकटकरनकहकतनआदककशतककयसगयस थस।इसकक बसदभढ़वसदढ़गणनकउकदसतसवकजकमपकशनहहककयक ह।ऐसढ़दशसमवसदढ़गणकककवरदहढ़उपधसरणसककजसयकगढ़।यह सनसथसकपतहककवसदढ़गणकमअपनसवसदअपनकबलबनतकपरससकबत करनसहमतसह।इससवबवधमपकतवसदढ़गणकमककसढ़कमजमरढ़कस लसभ पसप नहह कर सकतक ह। अतत यह पमसकणत हमतस ह कक वसदगसतभकमसवयनकपररवसरककसवपकतथढ़, कजसकसवर1944मदसममदर, भसगवतएवपवचमससवहककमधयबटवसरसहमगयस थस।ऐसढ़कसतकथमवसदगसतभकमपरककवलवसदढ़गणकससवतव ह, ऐससनहहमसनसजससकतसह।जबवसदगसतभकमपरककवल वसदढ़गणकससवतवनहहह, तबउनहमकबज़सभढ़नहहकदलवसयसजस सकतस, औरऐसढ़दशसमपकतवसदढ़गणककपकमहएनसमसनतरण कमशभनयघमकरतनहहमसनसजससकतसह।अततवसदपशकमसवक - 01 कसकनषकर"उपरमकसनससर";

वसदपशकमसवक- 02 सक कककनषकर- "

पमसकणतनहहमककयसजसतसह"।"

11. Learned first appellate Court, after minutely assessing the oral and documentary evidence on record and the finding recorded by the trial Court, reached to the categorical conclusion in paragraphs 41, 42 and 43 of its judgment which state as under :- "41.

इस पकसर उभय पकय कक दसरस पसतनत दसतसवककजक एव ममकखक ससकय सक इस बसत कक उपधसरणस बनतढ़ ह कक, उभय पकयअथसरतदसममदर, पवचमवभसगवतससवहककमधयसन1944म वसदगसत जमढ़नय कस आपसढ़ बटवसरस हम चभकस थस और उनकक मतयन कक बसद वसदढ़गण एव पकतवसदढ़गण अपनढ़-अपनढ़ भकमययपररहकर, कसकबजकसशतकरतकचलकआरहकह।तबऐसढ़ कसतकथ म वसदगसत भकम कम अब "

सवयनक कहनदभपररवसर" कक

सवपकतहमनसनहहकहसजससकतस।वसदभकमकससवयनकबटवसरस 1944-45 मउपरमकतढ़नमभसइययकक मधयहमनकसक " सवयनक कहनदभपररवसर"

टभटगयसह, औरकववसकदतसवपकत/ भकमकसआपसढ़ बटवसरसवर1944-45 महमनसपमसकणतहमतसह।कजसआपसढ़ बटवसरसकमककसढ़भढ़पकककदसरससकमनयसयलयमकमईचननमतढ़ नहहदढ़गयढ़ह।वसदढ़गणकक दसवसकमभढ़"

अवकधबसह" हमनस पसयसगयसह। 42.

तबऐसढ़कसतकथम, वतरमसनवसदगसतभकममएकमसत रप सक वसदढ़गण कस सवतव नहह ह और उनकक पभवरजय कक मधय बटवसरस हमनस पमसकणत हमतस ह। तब ऐसढ़ कसतकथ म वसदढ़गण वतरमसनवसदगसतभकमययपरअपनकसवतवककघमरणसऔरउसअवश कसबटवसरसकरसकर, कबज़सपसपकरनकककअकधकसरढ़नहहह।ऐसढ़ दशसमपकतवसदढ़गणककपकमहएरसजसवअकभलकखयमनसमसवतरण कम"शभनय"

घमकरतनहहककयसजससकतस। 43.

कनणरयमपभवरकककवकडकसओमयहबतसयसजसचनकसहकक, चभचकक सन 1944-45 कक आसपसस तढ़नय भसइयय दसममदर ससवह, भसगवतससवहएवपवचमससवहकक मधयवसदगसतभकमकसआपसढ़ बटवसरसहमचनकसह।कजसकसवयववसदढ़गणतथसउनकक ससककययनक भढ़सवढ़कसरककयसह।उनकसमसतयहकहनसहकक, 'बटवसरस असमसन"

थस?

कजसकअपनकजढ़वनकसलमपवचमससवहएवभसगवत ससवहनककभढ़कमईचननमतढ़सकमनयसयलययसफमरममनहहदढ़ थढ़। तब सन 1944-45 म हए बटवसरस कम अब इतनक लमबक अवकधककबसदनयसयलयमचननमतढ़दकनस, कनकशतरपसकवसदढ़गण ककदसवसकमसमयसवकधककबसहरहमनसपसयसजसतसह। 12.The well-reasoned finding recorded by the trial Court as affirmed by the first appellate Court in view of the categorical admission made by the plaintiffs' witnesses namely Makhan Singh (P.W. 1), Purushottam (P.W. 2) and Krishna Kumar (P.W.

3) holding that suit land has already been partitioned amongst plaintiffs' predecessor in title namely Bhagwat Singh and Pancham Singh and

defendants' predecessor in title namely Damodar Singh and thereafter, they are in separate and cultivating possession of the land which fell in their respective share during the said partition is a pure and simple finding of fact based on evidence available on record which is neither perverse nor contrary to the record and does not involve any substantial question of law for determination.

13.The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).

Sd/- (Sanjay K. Agrawal) Judge Harneet