Chattisgarh High Court

Amritlal Agrawal vs Vishnukant Agrawal on 9 July, 2021

                             1



    HIGH COURT OF CHHATTISGARH, BILASPUR

                    F.A. No. 118 of 2009

Amritlal Agrawal

                                             Appellant

                          Versus



Visnukant Agrawal

                                           Respondent

________________________________________________

Post for pronouncement of the Order on 09.07.2021

JUDGE

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Order reserved on : 10.02.2021

Order delivered on : 09.07.2021

FA No. 118 of 2009

• Amritlal Agrawal,S/o. Vyasnarayan Agrawal, aged about 67 years, R/o. Village Baloda, Tahsil Janjgir-Champa, district Janjgir-Champa

---- Appellant

Versus

• Vishnukant Agrawal S/o Vyasnarayan Agrawal, Aged bout 57 years, R/o House No.30/300, Near High Court,Mama Bhanja Talab,bilaspur (CG)

---- Respondent

For Appellant : Shri Ratnesh Kumar Agrawal, Advocate For Respondent : Shri Rajeev Shrivastava, Sr.Advocate assisted by Ms.Savita Tiwari, Advocate

Hon'ble Smt. Justice Rajani Dubey

C A V Order

09/07/2021

This appeal has been filed by the plaintiff/appellant against the

order of judgment and decree dated 30.04.2009 passed by the learned

Additional District Judge, Janjgir-Champa in Civil Suit No. 20-A/2008

whereby the suit of the appellant has been dismissed.

2. The plaintiff/appellant filed a civil suit praying for declaration of

title and permanent injunction interdicting the defendant from

disturbing the peaceful possession and enjoyment of the

appellant/plaintiff over the suit property.

3. Case of the plaintiff/appellant is that he is the absolute owner of

the suit house after partition which is situated at Akaltara, Ward No. 06

(old), House No. 348 (old) at present Ward No.5, House No. 119 and

he is in continuous possession of the suit property. On 22.06.2007, a

public notice regarding mutation was published by the

respondent/defendant after colluding with the employees of Municipal

Council Akaltara and got deleted the name of the appellant/plaintiff on

the documents pertaining to the disputed house and after recording his

name on the said documents, was looking to sale out the suit house

and is threatening the plaintiff to leave the disputed house.

4. On 05.03.2008, the appellant/plaintiff has made an application

for incorporating his name in place of respondent's name in the

Municipal record but the Municipal Corporation Akaltara has not

decided the plaintiff's application therefore, he has filed a civil suit

before the Additional District Judge, Bilaspur which was registered as

Civil Suit No. (9A/97) and the trial court passed the judgment and

decree dated 11.03.98 in favour of the appellant/plaintiff. Thereafter

appellant/plaintiff filed a civil suit before the Additional Sessions Judge

Janjgir-Champa which was registered as Civil Suit No. 23-A/84

wherein he has pleaded that the Municipal Corporation Akaltara and

the defendant/respondent are trying to dispossess him from the suit

house.

5. In his written statement, the defendant/respondent has denied

all the allegations and stated that the partition between the family was

held on 31.10.1983. He has also denied the fact that the disputed

house was received by the Plaintiff/appellant in partition. He has also

denied that the appellant/plaintiff was declared owner of the disputed

house vide judgment dated 11.03.98 passed in Civil Suit No. 23A/84

(Civil Suit No. 9A/97) but it has been pleaded that in the said Civil Suit

the disputed house was not in question therefore, no decree has been

passed in favour of the appellant/plaintiff. The appellant/plaintiff is not

the owner of the disputed property and that he has illegally recorded

his name over the suit property on 27.08.84. The respondent has also

denied the fact that the appellant was in possession of the disputed

house in question. As per partition deed dated 31.10.1983, after

partition, the house in dispute was registered by the occupants in their

names and therefore the suit has been rejected.

6. The trial court, after recording the evidence of both the parties,

passed the judgment and decree dated 30.04.2009 by dismissing the

suit of the plaintiff/appellant. Hence this appeal.

7. Counsel for the appellant submits that the impugned judgment

and decree is contrary to the facts of law therefore, is liable to be set

aside. He submits that the trial Court has erred in holding that the

appellant has not proved the absolute ownership and continuous

possession of the suit house on the basis of Ex.P-1, P-2 and P-5. He

submits that the trial court has ignored the material available on record

and passed the impugned judgment and decree. He submits that the

court below has erred in holding that the plaintiff/appellant has filed

civil suit on the basis of earlier judgment and decree dated 11.03.98

passed in Civil Suit No. 23A/84 (9A/97) but the same has been proved

on the basis of Family partition dated 31.10.1983 which has been

ignored by the trial court and has passed the impugned judgment and

decree.

8. Counsel for the appellant has filed application under Order 44

Rule 27 of the Code of Civil Procedure along with the list of documents

and submits that during pendency of this appeal, the

respondent/defendant has withdrawn the First Appeal No. 335/1998

and has sold the house situated at Akaltara through registered sale

deed dated 11.04.1986 in favour of some third person. These

documents are necessary for deciding the plaintiff's suit therefore, they

are taken on record.

9. Counsel for the respondent, on the other hand, supported the

impugned judgment and decree.

10. Heard counsel for the parties and perused the material available

on record.

11. The main objection of the plaintiff is that in the earlier suit ( No.

9A/97), vide judgment and decree dated 11.03.98, the disputed house

has been declared to be the portion of the appellant. He has filed

certified copy of the judgment and decree and the defendant has also

admitted the family settlement which is Ex.P-5 to P-10 and in the said

family settlement, the property which is in the name of the

appellant/plaintiff is as follows :

2- ve`r nkÅ

cNkSns & ¼1½ iape lgh pd iwjk fryd lgh rd vkSj ljkj ijhZ mrkj rdA

¼2½ yVh j[kokyh okyk fcgh cxhpkA

¼3½ x< ds mij ds vke cxhpk dqEgkj eqMk ds vke yksf/k;k ikj ds vke blds vykok /kuqgkj ikjk ds NksM lc vkeA

¼4½ dBksj iqjkuk ?kj ds fnoky rd csYgk c"khj okyk McjkA

¼5½ Mksaxjh cgjk ¼dksjch½

fcykliqj & ¼1½ f'ko Vkdht ds ikl okyk tehu] nkÅ ls yxk tehu dk vk/kk] fVdjkikjk dk iwjk edkuA

cykSnk & fjgk;lh edku iwjk o pansy tehu cNkSn rjQ dk [email protected] fgLlk A

¼1½ nkÅ ds uke tks Hkh cSad esa #i;k tek gS mldks ve`r nkÅ ds NksM vkil esa lc vkB fgLls djsaxsA

¼2½ tks ?kj esa 220 iku Vhu gS mls nks fgLlk djsaxsA

[email protected]& f'ko dqekj 'kqDyk

vdyrjk & ¼10½ lw;Zeq[kh okyk iwjk edku o tehu gkbZ Ldwy eSnku rdA

In the earlier suit, the court below has framed issue No. F as under :

¼Q½ D;k oknh dks c¡Vokjs esa djhch xzke dk [kljk uacj 370

vkSj 371 xzke cNkSn dk fjgk;'kh edku] vdyrjk fLFkr edku

uEcj 348 okMZ uEcj 6] pansyokyk IykWV [kljk uEcj [email protected]]

fVdjkikjk fcykliqj fLFkr edku] f'ko Vkdht ds ikl fLFkr

[kljk uEcj [email protected]] [email protected] feyh ftl ij og rHkh ls dkfct

gS\

12. Vide judgment dated 11.03.98, learned Additional District Judge,

Bilaspur declared the plaintiff/appellant Amrit Lal as the owner of the

plaint mentioned in the partition deed. Schedule a,b and c were also

declared part of the said decree. The plaintiff/appellant has pleaded

ownership by virtue of earlier judgment and decree. Appellant has filed

several documents including the Family Settlement Ex.P-5 to P-10 and

judgment and decree dated 11.03.98 (Ex. P-1) but in these documents

Ward No. 6 House No. 348 now Ward No. 5 House No. 119, Akaltara

is not mentioned. As per the Family Settlement, appellant Amritlal has

got the ownership of sun facing at Akaltara house.

13. This initial burden of proof was required to be discharged by the

plaintiff/appellant. The plaintiff has failed to prove its burden that the

disputed house is the same house which is included in the family

settlement and no document has been proved by him in this regard.

The appellant admits in his cross examination wherein he has stated

that ";g lgh gS fd O;oLFkk i= iz-ih-&5 esa lw;Zeq[kh okyk iwjk edku o

tehu gkbZ Ldwy eSnku rd esjs fgLls esa fnyk;k x;k gSA ;g Hkh lgh gS

fd bl Hkwfe ds fooj.k esa [k-ua- ,oa jdck ugha fy[kk x;k gSA;g dguk

xyr gS fd fookfnr bl izdj.k dk edku iz-ih-&5 esa nf'kZr edku ugha

gSA"

14. Learned trial court in para 9 of its judgment finds that the

disputed house is not proved to be in the possession and ownership of