Ramsamooh @ Khora v. Ram And Others

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.144 of 2005 Ramsamooh @ Khora, Son of Jhanka, aged about 60 years, Caste Kumhar, Resident of Kharakona, Police Station Batouli, Tahsil Lundra, District Surguja (CG) ---- Appellant

Versus

1. Ram S/o Jhanka, aged about 65 years;

2. Moharlal Son of Laxman, aged about 19 years,

3. Heeralal Son of Laxman, aged about 23 years;

4. Samaylal Son of Laxman, aged about 28 years;

5. Ramjan Son of Sunder, aged about 60 years;

6. Sadhu son of Sunder, aged about 40 years;

7. Ramjit son of Sunder, aged about 55 years;

8. Thuru son of Tidu, aged about 40 years;

9. Bodo son of Kunjal Ram, aged about 45 years; All Caste Kumhar, Resident of Village Kharakona, Police Station Batouli, Tahsil Lundra, District Surguja (CG) 10.

State of Chhattisgarh, Through Distt. Collector, Surguja Ambikapur ---- Respondents For Appellant :

Mr.Sushil Dubey, Advocate For Respondent No.10 :

Mr.A.N.Bhakta, Dy.G.A.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 18.01.2019

1. Heard on admission.

2. This is the plaintiff's second appeal under Section 100 of the Code of Civil Procedure questioning the judgment and decree passed by the First Appellate Court, whereby that Court has affirmed the

judgment and decree passed by the trial Court dismissing the suit.

3. Learned counsel for the appellant/plaintiff would submit that the finding recorded by two Courts below that partition took place between the plaintiff, his brothers and predecessor-in-title of the defendants is perverse and contrary to record.

4. I have heard learned counsel for the appellant/plaintiff, perused the impugned judgment and decree and records of the Courts below.

5. The plaintiff brought a suit for partition and possession stating inter-alia that he has 1/6 share in the suit property. The trial Court recorded a finding that partition has taken place during life-time of Jhanka, father of the plaintiff and his brothers, which is evident from Ex.D/1 dated 25.3.68. The trial Court also recorded a finding that the plaintiff has admitted the fact of partition in para-4 of his crossexamination, therefore, he is not entitled for partition, which has been upheld by the First Appellate Court. The two Courts below have concurrently recorded a finding that partition has taken place during lifetime of Jhanka giving share to the plaintiff and his brothers.

6. The Supreme Court in the matter of Ratnam Chettiar and others v. S.M. Kuppuswami Chetttiar and others 1 has clearly held that a partition effected between the members of the Hindu undivided family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos 1 (1976) 1 SCC 214

cannot be lightly set aside.

7. In the instant case, there is no evidence on record that partition effected between the parties is obtained by fraud, coercion, misrepresentation or undue influence, as such, the finding recorded by two Courts below that partition has taken place between the plaintiff and his brothers is the finding of fact based on evidence available on record, which is neither perverse nor contrary to record. I do not find any perversity or illegality in the said finding much less the substantial question of law.

8. Accordingly, the second appeal being devoid of merit is liable to be and is hereby dismissed in limine. No cost(s). Sd/- (Sanjay K.Agrawal) Judge B/-