Kusum Kumari vs Sohan And Others
2021 Latest Caselaw 281 Chatt

                                           1

                                                                                 NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                         Second Appeal No.324 of 2003

       Kusum Kumari, D/o Late Mohan, aged about 47 years,
       Occupation Agriculture, R/o Pipra, P.S. Patna, Tehsil
       Baikunthpur, Distt. Koria (C.G.)
                                                     (Plaintiff)
                                                ---- Appellant

                                        Versus

   1. Sohan (dead) through LRs
                                                                           (Dfd. No.1)

       1.a) Raghuveer, S/o late Sohan, aged about 50 years

       1.b) Jawahir, S/o late Sohan, aged about 45 years

       1.c) Girdhari, S/o late Sohan, aged about 42 years

       1.d) Nahru, S/o Late Sohan, aged about 40 years

       All R/o Village Kerabahara, Tahsil Manendragarh, Distt. Koria
       (C.G.)

   2. Shanti, D/o Jukmen @ Jukki, age 47 years, R/o Basti, P.S. &
      Tehsil Baikunthpur, Distt. Koria (C.G.)
                                                   (Plaintiff No.2)

   3. Dalluram, S/o Bahoran Rajwar, age 52 years, Occupation
      Agriculture, R/o Basti, P.S. & Tehsil Baikunthpur, Distt. Koria
      (C.G.)
                                                     (Plaintiff No.3.A)

   4. Sumariya Bai, D/o Bahoranram, W/o Ramnath Rajwar, age 37
      years, Occupation Agriculture, R/o Shankarpur (Belbahra), P.S.
      & Teh. Manendragarh, Distt. Koria (C.G.)
                                                    (Plaintiff No.3.B)

   5. Rajan, Wd/o Late Mohan, age 67 years, Occupation Agriculture,
      R/o Pipra, P.S. Patna, Tehsil Baikunthpur, Distt. Koria (C.G.)
                                                          (Plaintiff No.4)

   6. The State of Chhattisgarh, through Collector, Koria, Baikunthpur,
      Distt. Koria (C.G.)
                                                    (Proforma Dfd. No.2)
                                                        ---- Respondents

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For Appellant: Mr. Manoj Chauhan, Advocate on behalf of Mr. R.N.

Jha, Advocate.

For Respondents No.1.a to 1.d: -

Mr. Sanjay Patel, Advocate.

For Respondent No.6 / State: -

Mr. Sunil Otwani, Additional Advocate General.

----------------------------------------------------------------------------------------

Hon'ble Shri Justice Sanjay K. Agrawal

Judgment On Board

14/06/2021

1. The second appeal was admitted for final hearing on 8-12-2014

on the following substantial question of law: -

"Whether the two courts below were justified in holding that defendant No.1 was entitled for a right and title over the suit property only by virtue of his name being entered into the revenue records along with the name of Sundar Sai, the grand father of the plaintiff?"

(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court.)

2. Four plaintiffs - grand-son, two sons and son-in-law of Sundar

Sai, filed suit for declaration of title and permanent injunction

over the suit land shown in Schedule A appended with the plaint

stating inter alia that it is the exclusive property of Sundar Sai in

which original defendant No.1 has no right and title and mutation

of his name is illegal, without jurisdiction and without authority

of law. Defendant No.1 filed written statement stating inter alia

that it is the joint family property of Sundar Sai and his father

which he has inherited and they are in joint possession of the suit

land, therefore, the plaintiffs are not entitled for decree as

claimed. However, defendant No.1 has also filed counter-claim

claiming half share in the suit property pleading inter alia that he

is entitled for half share in the suit property, as defendant No.1's

father Mohit and Sundar Sai both were brothers. The trial Court

after appreciating oral and documentary evidence available on

record held that the suit property is the joint family property of

Sundar Sai and defendant No.1 and there are in joint possession

of the suit property and accordingly, granted decree of half share

in favour of defendant No.1 and dismissed the suit of the

plaintiffs. In appeal preferred by the plaintiffs, they remained

unsuccessful and now, they have filed second appeal in which

one substantial question of law has been formulated which has

been set-out in the opening paragraph of this judgment for the

sake of completeness.

3. Mr. Manoj Chauhan, Advocate appearing on behalf of Mr. R.N.

Jha, learned counsel for the appellant herein / plaintiff, relying

upon the written submission filed by Mr. Jha, would submit that

the finding recorded by the two Courts below holding that the suit

property was held by Sundar Sai and defendant No.1 is a perverse

finding, as it is the exclusive property of Sundar Sai in which

defendant No.1 has no right, title and interest, therefore, decree

granted by the two Courts below is liable to be set aside, as the

decree has been grated in favour of defendant No.1 and refused in

favour of the plaintiffs and it is based on perverse finding and is

contrary to the record.

4. Mr. Sanjay Patel, learned counsel appearing for the LRs of original

defendant No.1 / respondents No.1.a to 1.d herein, would support

the impugned judgments and decrees of the two Courts below

holding that it is based on the evidence available on record, it is

neither perverse nor contrary to the record.

5. I have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

records with utmost circumspection.

6. It is the case of the plaintiffs being the successors-in-interest of

Sundar Sai, that the suit property is the exclusive property of

Sundar Sai, therefore, defendant No.1 has no right and title over

the said property to which defendant No.1 has claimed that his

father Mohit and Sundar Sai both were brothers, therefore

Sundar Sai and he (defendant No.1), both have joint interest in

the suit property and they are in joint possession of the suit

property which the trial Court accepted relying upon Exs.D-2 &

D-4, particularly Ex.D-4 Jamabandi in which survey settlement

was granted in favour of Sundar Sai - predecessor-in-title of the

plaintiffs and Mohit - predecessor-in-title of defendant No.1. As

such, the finding recorded by the trial Court that the suit

property was jointly held by Sundar Sai and defendant No.1's

father - Mohit, is a finding of fact based on the evidence available

on record. On appeal, the first appellate Court concurred with

the said finding of the trial Court holding that such finding has

been arrived at by the trial Court after appreciating oral and

documentary evidence available on record and there is no reason

to interfere with the finding recorded by the trial Court. The

finding recorded by the two Courts below holding that the suit

property was jointly held by Sundar Sai - predecessor-in-title of

the plaintiffs and Mohit - predecessor-in-title of original

defendant No.1, is a pure and simple finding of fact based on the

evidence available on record, particularly Exs.D-2 & D-4 in which

the names of Sundar Sai and Mohit, both are said to have been

recorded. As such, the said finding is not liable to be interfered

with being based on the material available on record and it is not

contrary to the record. I do not find any perversity or illegality in

the said finding. The substantial question of law is answered

accordingly.

7. As a fallout and consequence of the aforesaid discussion, the

second appeal is devoid of merit, it deserves to be and is

accordingly dismissed leaving the parties to bear their own

cost(s).

8. Decree be drawn-up accordingly.

Sd/-

(Sanjay K. Agrawal) Judge

Soma