Chattisgarh High Court
Shobharam (Died)Through Lrs vs Smt. Samari on 17 June, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 111 of 2010
1. Shobharam S/o Late Ganeshram (died) through
LRs. :
(i). Udiya Bai, Wd/o Late Shobharam, Aged about
65 years.
(ii). Pyarilal S/o Late Shobharam, Aged about 55
years.
(iii). Malti Chouhan D/o Late Shobharam, Aged
about 42 years.
(iv). Basanti Chouhan D/o Late Shobharam, Aged
about 39 years.
(v). Bhagwati Chouhan D/o Late Shobharam, Aged
about 37 years.
(vi). Surendra Chouhan S/o Late Shobharam, Aged
about 35 years.
(vii). Sadanand Chouhan S/o Late Shobharam, Aged
about 33 years.
All R/o Village Siyarpali, Tahsil and Distt.
Raigarh, Chhattisgarh.
2. Ram Dayal S/o Ganeshram (died) through LRs. :
(I). Suruwali Chouhan Wd/o Late Ramdayal, Aged
about 50 years.
(ii). Alekh Ram Chouhan S/o Late Ramdayal, Aged
about 30 years.
(iii). Anandi Chouhan S/o Late Ramdayal, Aged
about 21 years.
2
(iv). Akash Chouhan S/o Late Ramdayal, Aged about
19 years.
All are R/o Village Siyarpali, Tahsil and Distt.
Raigarh, Chhattisgarh.
3. Mohitram S/o Late Kaliya Dogi Chouhan (died)
through LRs. :
(I). Shanti Wd/o Late Mohitram.
(ii). Benu S/o Late Mohitram.
(iii). Murli S/o Late Mohitram.
(iv). Raju Bai W/o Prem Prasad, Aged about 22
years, R/o Lakha Tahsil and Distt. Raigarh,
Chhattisgarh.
4. Pili Bai D/o Late Kaliya (Wd/o Sundari Dogi
Chauhan), Aged about 81 years.
5. Smt. Laxmi Bai D/o Late Kaliya Dogi Chauhan (W/o
Ghasiram).
6. Smt. Urmila D/o Kaliya Dogi Chauhan (W/o
Shaukilal).
7. Smt. Ularin D/o Late Kaliya Dogi Chauhan (W/o
Pinto).
All are By caste Dogi Chouhan (Ganda), Occupation
Agriculturist R/o Appellants No. 1 to 5 Village
Siyarpali, Tahsil and Distt. Raigarh,
Chhattisgarh. Appellant No. 5 is R/o Village
Gendgaon, Tahsil Gharghoda, Distt. Raigarh.
Appellant No. 6 is R/o Village Daripali, Tahsil
and Distt. Raigarh, Appellant No. 7 is R/o
Village Nawapara, Tahsil and Distt. Raigarh,
Chhattisgarh.
Appellants/Plaintiffs
3
Versus
1. Smt. Samari D/o Bhagatram Dogi Chouhan and W/o
Shri Karmu, Aged about 45 years, Occupation
Agriculturist, R/o Village Devalsurra, Police
Station Pusaur, Tahsil and Distt. Raigarh,
Chhattisgarh.
2. Deenanath S/o Late Janki Prasad Mehar.
3. Sanat Kumar S/o Late Janki Prasad Mehar.
4. Ashwani Kumar S/o Late Janki Prasad Mehar.
5. Heera Lal S/o Late Janki Prasad Mehar.
6. Sushil Kumar S/o Late Janki Prasad Mehar.
Respondents No. 2 to 6 are by caste Kosta and R/o
Kostapara, Raigarh, Tahsil and Distt. Raigarh,
Chhattisgarh.
7. State of Chhattisgarh, Through Collector,
Raigarh, Distt. Raigarh, Chhattisgarh.
Respondents/Defendants
For Appellants : Mr. Vivek Tripathi, Advocate
For State : Mr. Ravi Bhagat, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Order on Board (Through Video Conferencing)
17/06/2021
1. Heard on admission and formulation of substantial
question of law in this second appeal preferred
by the appellants/plaintiffs under Section 100 of
CPC against the impugned judgment and decree
passed by the first appellate Court affirming the
judgment and decree by which trial Court
dismissed the suit of the plaintiff for permanent
injunction.
2. Mr. Vivek Tripathi, learned counsel for the
appellants/plaintiffs, would submit that both the
Courts below have committed grave legal error in
holding that plaintiffs are not entitled for
decree for permanent injunction and they have
further erred in holding that the judgment and
decree passed in the earlier civil suit bearing
No. 98A/66 and thereafter, in civil appeal No.
15A/70 has been complied with by the
defendants/purchasers by recording a finding
which is perverse and contrary to the record, as
such, the appeal be admitted by formulating
substantial question of law.
3. The suit property was earlier held by plaintiffs
as well as defendant No. 1. It is admitted
position on record that defendant No. 1 and her
mother Sonkunwar executed sale deed dated
11/07/1966 and alienated the suit property shown
in Schedule 'A' and 'B' of the plaint in favour
of the father of defendants No. 2 to 6 namely
Janki Prasad Mehar, against which the
predecessorintitle of the plaintiffs filed
Samari and father of defendants No. 2 to 6 Janki
Prasad Mehar in which decree was passed on
27/04/1968 (Ex. P/2) against which two appeals
were filed being CA No. 15A/70 and 16A/70 but a
common appellate judgment and decree was passed
on 11/02/1972 (Ex. P/1) wherein the first
appellate Court directed that the alienation made
by defendants No. 1 and 2 therein in favour of
defendant No. 3 is not binding on the plaintiffs
and defendant No. 3/purchaser is at liberty to
get the suit property partitioned in accordance
with law as he has purchased the undivided share.
4. It is the case of the plaintiffs that father of
defendants No. 2 to 6 namely Janki Prasad Mehar
being purchaser/defendant No. 3 in Civil Suit No.
98A/66 did not comply with the decree passed in
Civil Appeals No. 15A/70 and 16A/70 and did not
file a suit for partition and as such, since the
decree passed by the Civil Courts has not been
followed, plaintiffs are entitled for the relief
of permanent injunction against the defendants,
whereas defendants No. 2 to 6 have clearly stated
in their written statement that their father
Janki Prasad Mehar/purchaser filed a proceeding
under Section 178 of Chhattisgarh Land Revenue
Code, 1959 in which the order was passed by
Revenue Officer for partition on 07/03/1974 and
in accordance with that, in partition, Janki
Prasad Mehar received 1.52 acres from Khasra No.
107, 1.41 acres from Survey No. 109 and 1.94
acres from Survey No. 170 making his total share
to be 4.867 acres. Ultimately, the order dated
07/03/1974 passed by the Tahsildar in the
partition proceedings was affirmed by the
appellate and revisional authority upto the Board
of Revenue, as such, plaintiffs are not entitled
for decree as claimed.
5. Learned trial Court, upon appreciation of oral
and documentary evidence on record, dismissed the
suit holding that suit property being
agricultural land has rightly been partitioned by
the Revenue Court by order dated 07/03/1974 and
Revenue Court is the competent authority with
regard to partition of agricultural land by
virtue of Section 178 of the Land Revenue Code,
as such, the order of the revenue Court has
become final and since after partition, the suit
property is not the joint family property
anymore, therefore, plaintiffs are not entitled
for decree for permanent injunction. The said
findings recorded by the trial Court have also
been affirmed by the first appellate Court.
6. Both the Courts below have clearly held that
though the father of defendants No. 2 to 6 namely
Janki Prasad Mehar purchased the joint family
property of plaintiffs and defendant No. 1 by
sale deed dated 11/07/1966, but in the Civil
Appeals No. 15A/70 and 16A/70, the first
appellate Court by judgment and decree dated
11/02/1972 (Ex. P/1) directed Janki Prasad
Mehar/purchaser to get the suit property (in that
suit) partitioned, which he got partitioned by
the order passed by the Tahsildar dated
07/03/1974 in which the suit property in this
suit fell in the share of defendant No. 1 Samari
and thereafter, in favour of father of defendants
No. 2 to 6 Janki Prasad Mehar by virtue of sale
deed dated 11/07/1966 executed by defendant No. 1
in his favour and the suit property is no longer
the joint family property of plaintiffs as well
as Janki Prasad Mehar (now, defendants No. 2 to 6
being his LRs.).
7. The aforesaid finding recorded by the two Courts
below that suit property is the separate property
of defendant No. 1 after partition and it has
rightly been alienated in favour of Janki Prasad
Mehar i.e. father of defendants No. 2 to 6 by
sale deed dated 11/07/1966, as such, plaintiffs
are not entitled for permanent injunction is a
pure and simple finding of fact based on evidence
available on record which is neither perverse nor
contrary to the record. I do not find any good
ground for formulating substantial question of
law for admission of the appeal.
8. Accordingly, the second appeal stands dismissed
in limine without notice to the other side. No
cost(s).
Sd/
(Sanjay K. Agrawal)
Judge
Harneet
