Shri Narayan Pandey vs Kailaso Bai (Dead) Thr. Lrs
2021 Latest Caselaw 487 Chatt

                         1

                                                    NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                 SA No.229 of 2011

  1. Shri Narayan Pandey, S/o Bachhan Pandey, Aged
     About 55 Years, Occupation Teacher

  2. Nikhil Pandey, S/o Narayan Pandey, Aged About
     34 Years, Occupation ­ Business

  3. Navneet Pandey, S/o Narayan Pandey, Aged About
     34 Years, Occupation ­ Business

    All R/o Village Bazarpara, Lakhanpur, Tehsil
    Ambikapur, District Surguja Chhattisgarh

                                       ­­­­ Appellants

                      Versus

  1. Kailaso Bai (Dead) Through LRs.


    1.A Smt Anuradha Nagesiya, D/o Late Bharat
    Pandey, W/o Ram Nagesiya, Aged About 30 Years,
    Occupation - Housewife, R/o Near Bus Stand,
    Village Lakhanpur, Tahsil Ambikapur, District
    Surguja, Chhattisgarh

    1.B (Deleted) Deepak Pandey (Dead)         As   Per
    Honble Court Order Dt. 01­03­2021.

    1.C (Deleted) Vivek Pandey (Dead)         As    Per
    Honble Court Order Dt. 01­03­2021.

                                     ­­­­ Respondents

For Appellants Mr. Shakti Raj Sinha, Adv For Respondent Ms. Priyanka Mehta, Adv

Hon'ble Justice Shri Sanjay K. Agrawal

Order On Board

23/06/2021

1. Heard on admission and formulation of

substantial question of law in this second

appeal preferred by the appellants/defendants.

2. By the impugned judgment and decree, the First

Appellate Court has partly allowed the appeal

preferred by the appellants/defendants vide

judgment and decree dated 06.04.2011 passed by

the learned Second Additional District Judge,

Ambikapur, District Sarguja (C.G.) in Civil

Appeal No.03A/2007, arising out of the

judgment and decree of the Trial Court dated

08.03.2007 passed by the learned Fifth Civil

Judge Class­II, Ambikapur, District Sarguja

(C.G.) in Civil Suit No.60A/2006, whereby the

learned Trial Court allowed the suit preferred

by the respondent/plaintiff.

3. Mr. Shakti Raj Sinha, learned counsel for the

appellants/defendants, would submit that the

First Appellate Court went wrong in holding

that partition deed dated 26.01.1987 (Ex­D/1)

is not the reliable document and the suit

property is owned by Late Bharat Pandey and

now is inherited by the LRs of Bharat

Pandey/respondent by recording a finding

perverse to the record. It ought to have held

that though the property was initially granted

in settlement in favour of Bharat Pandey but

in family arrangement vide Ex­D/1 dated

26.01.1987, it fell in the share of defendant

No.1 Narayan Pandey, father of defendant Nos.2

& 3, as such by recording perverse finding,

the first appeal has been allowed, therefore,

this appeal involves substantial question of

law for determination.

4. I have heard learned counsel for the

appellant, considered his submissions made

herein­above and also went through the records

with utmost circumspection.

5. Admittedly and indisputably, the suit property

bearing Khasra No.48/2, area 0.012 decimal

situated at Village Juna Lakhanpur, Tahsil

Ambikapur, District Sarguja was granted to Mr.

Bharat Pandey vide patta dated 03.02.1977 (Ex­

P/2) by the Tahsildar, Ambikapur and he was

declared as bhumi swami of the suit land. He

died in the year 1993. He was in possession of

the suit land/house. In front side of the suit

house, there were four rooms and in back side,

Bharat Pandey and his family was living. In

one room, he was carrying on business of hotel

and the rest three rooms were given on rent.

But on account of his deteriorating health

condition, it was suggested by the defendant

No.1 that the suit shop along with the

articles used for hotel business be given to

him on monthly rent of Rs.1,000/­, which was

accepted by Bharat Pandey and his wife, the

plaintiff, and the suit shop was given to his

brother defendant No.1. When the request was

made for vacating the suit shop, it was denied

by the defendant No.1. The defendant No.1 got

executed the forged partition deed (Ex­D/1).

Thereafter the plaintiff sent a legal notice

dated 18.12.1997 (Ex­P/4) to the defendant

No.1 for vacating the suit shop. It is the

case of the plaintiff that the defendant No.1

is the tenant and tenancy has been terminated,

as the suit shop is not vacated and the

possession of the articles relating to the

hotel business has also not been delivered for

which she filed civil suit seeking declaration

of title, peaceful possession of the suit

shop, in which the defendant No.1 filed

written statement and controverted the plaint

allegations stating inter­alia that on account

of family arrangement vide Ex­D/1 dated

26.01.1987, the suit shop fell in his share

and as such the plaintiff is not entitled for

decree.

6. The Trial Court upon appreciation of oral and

documentary evidence available on record held

that the plaintiff and her sons and daughters

are the exclusive title holder of the land

bearing Khasra No.48/2, area 0.12 decimal and

the defendants being tenants, the plaintiff is

entitled for decree for possession along with

the articles used for the hotel business. The

defendants preferred first appeal before the

First Appellate Court. The First Appellate

Court slightly modified the decree holding

that the relationship between the plaintiff

and defendants as landlord and tenant is not

established but the plaintiffs are the title

holder of the suit land and on the basis of

title, the plaintiffs are entitled for decree

for possession but they are not entitled for

decree for recovery of articles used for hotel

business, against which the defendants have

now again preferred this second appeal.

7. The Trial Court has clearly recorded a finding

that the suit land was granted in favour of

Bharat Pandey, the predecessor­in­title of the

plaintiffs, vide patta (Ex­P/2) and he is in

possession over the suit shop and it cannot be

said that on account of restriction mentioned

in the patta, he could not have transferred it

to his brother Narayan Pandey, the defendant

No.1. It was further held that the partition

deed (Ex­D/1) and electricity bill (Ex­D/2)

are not the documents worth reliable for

number of reasons and granted decree in favour

of the plaintiff. The First Appellate partly

modified the decree by holding that the

relationship between the plaintiff and

defendants as landlord and tenant is not

established but the plaintiffs are the title

holder of the suit land and on the basis of

title, the plaintiffs are entitled for decree

for possession but they are not entitled for

decree for recovery of articles used for hotel

business. As such, the finding recorded by the

two Courts below holding that the plaintiff

being the title holder are entitled for

possession of suit premises are based on

material available on record and it has

rightly been held that no title has been

conferred vide Ex­D/1 in favour of defendant

No.1 and it cannot be said that on account of

restrictions in the patta vide Ex­P/2, it

could not have been transferred in favour of

defendant No.1 by Bharat Pandey, predecessor­

in­title of the plaintiff. As such the

findings recorded by the two Courts below are

findings of fact based on the material

available on record, which are neither

perverse nor contrary to law.

8. I do not find any substantial question of law

for determination in this second appeal

preferred by the appellants/defendants. It

deserves to be and is hereby dismissed in

limine without notice to the other side. No

order as to cost (s). Sd/­

Sanjay K. Agrawal Judge Nirala