Munni Bai @ Lutputi vs (Deleted) Manchan @ Kokdi (Died) ...
2021 Latest Caselaw 637 Chatt

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                                                                 NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR
             Second Appeal No.379 of 2002
           Judgment reserved on :18.06.2021
           Judgment delivered on:28.06.2021
Munni Bai @ Latputi d/o late Laxman, age 34 years,
Caste­Uraon,    Occupation­Household,    r/o   village
Kawandand, P.S. & Tehsil Ambikapur, Dist. Surguja (CG)
                                ­­­­ Appellant/Defendant No.1
                           Versus
1. Manchan @ Kokdi (died) through LR's
1A. Purushottam     S/o    Suresh    Chandra,       aged    about   46
years,
1B. Shrimati   Pista      W/o   Purushottam,        aged    about   40
years,
Both are R/o. Mayapur road             (Kouwandand), City -
Ambikapur, Post and Police             Station - Ambikapur,
District Surguja (CG)
2. Jugul (died) through LR's
2.a Hario @ Pakri (died and deleted)
2.b Shri   Uraon,   S/o    Late     Jugul    Ram    aged    about   25
years.
2.c Shri Pandu S/o Late Jugul Ram aged 23 years.
2.d Chokho S/o Late Jugul aged 20 years.
2.e Ghoghi S/o Late Jugul aged 18 years
All are R/o Khairbar            (Ganaghat),        P.S.    Ambikapur,
Distt.Surguja (CG)
3. Jaipal S/o Muneshwar, age 34 years.
4. Babla S/o Muneshwar, age 32 years,
5. Jagman S/o Muneshwar, age 38 years,
All by caste Uraon, Occupation Agriculture, Resp.No.3
to 5 r/o village Khairbar, P.S. & Tehsil Ambikapur,
District Surguja M.P. (Now C.G.)
6. The State of     M.P.    (Now     C.G.)    through      Collector
   Surguja (CG)
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                                                         ­­­­ Respondents

For Appellant/Defendant No.1:

Mr.A.K.Prasad, Advocate For Respondents No.1A to 1B/ LR's of Plaintiff No.1:

Mr.A.N.Pandey, Advocate For Respondents No.2b to 2e, 3 and 4:

Mr.Bhupendra Singh, Advocate For Respondent No.6/State:

Mr.Ravi Bhagat,Dy.G.A.

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment

1. This second appeal preferred by defendant No.1 was

admitted for hearing on 18.2.2015 by formulating

following substantial questions of law:

(i) "Whether the lower Appellate Court was not justified in reversing a well reasoned judgment and decree passed by the Trial Court?

(ii) Whether the entire relevant evidence has not been considered and a wrong finding/perverse finding in relation to partition, as alleged by the plaintiffs has been recorded by the lower Appellate Court?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

2. The property shown in Schedule "A" of the plaint was

settled in Surguja settlement in favour of Late

Muneshwar Uraon and Laxman Uraon and thereafter

Muneshwar Uraon died on 31.7.89. It is the case of

the plaintiffs that they are legal representatives

of Muneshwar, whereas defendant No.1 is sole

daughter of Laxman namely Munni Bai. Shri Laxman

sold 12 decimal of land and executed sale deed in

favour of her daughter i.e. defendant No.1 on

16.5.89 vide Ex.D­5 and thereafter the suit was

filed on 30.8.90 by the plaintiffs herein seeking

cancellation of sale deed dated 16.5.89 executed by

Laxman in favour of her daughter Munni Bai vide

Ex.D­5. Apart from cancellation of sale deed, they

also claimed that the suit property shown in

Schedule "C" of the plaint be declared that it is

owned by the plaintiffs as the property held by

their father Muneshwar i.e. 0.29 decimal of land.

The present dispute relates to sale deed executed by

Laxman in favour of her daughter Munni Bai/defendant

No.1 as well as the land bearing Khasra Nos.2376,

2378 and 2379 i.e. total 29 decimal of land as it is

the case of the plaintiffs that out of total 35

decimal of land, Laxman has only right to 6 decimal

of land and remaining is held by Muneshwar and now

the plaintiffs. Therefore, except 6 decimal of land,

all the lands are held by Muneshwar and as such, the

plaintiffs are entitled for possession of the said

land.

3. Resisting the suit, defendant No.1 filed her written

statement and denied the averments made in the

plaint stating inter­alia that the suit property was

held by Muneshwar and Laxman both in Surguja

settlement and both have equal share in the

property, but they were staying separately and in

the year 1955­56 both have partitioned and in Khasra

No.2376 Muneshwar has constructed his house and in

Khasra No.2377 Laxman has constructed his house and

the land being Khasra Nos.2378 and 2379 both have

partitioned and as such, there is already

partitioned between them. It has also been pleaded

that in earlier Civil Suit No.4A/82, decided on

26.7.83 and Civil Appeal No.56A/86, decided on

30.8.1987 (Ex.D4) it has been held that Khasra

No.2377 area 6 decimal was held by Laxman and Khasra

No.2376 area 8 decimal was held by Muneshwar and

finding of partition between them has already been

recorded. It has also been pleaded that Laxman has

right to alienate the suit property in favour of

defendant No.1 and the suit is barred by res­

judicata with regard to Khasra Nos.2376 and 2377 and

as such, the suit is liable to be dismissed.

4. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment and decree 23.12.96, dismissed the suit

holding that the land bearing Khasra Nos.2376 and

2377 has already been decided in previous suit filed

by Laxman and therefore, in subsequent suit, the

plaintiffs are not entitled for any relief. However,

with regard to the land bearing Khasra No.2378 and

2379, the trial Court dismissed the suit filed by

the plaintiffs finding no merits. Feeling aggrieved

against the judgment and decree of the trial Court,

the plaintiffs preferred first appeal before the

first appellate Court. The first appellate Court by

the impugned judgment and decree, set aside the

judgment and decree of the trial Court and decreed

the suit declaring that the property shown in

Schedule "C" of the plaint is held by the plaintiffs

and except 6 decimal, sale deed is void. Questioning

the judgment and decree of the first appellate

Court, defendant No.1 preferred this second appeal

under Section 100 of the CPC, in which two

substantial questions of law have been formulated by

this Court, which have been set­out in the opening

paragraph of this judgment for sake of completeness.

5. Mr.A.K.Prasad, learned counsel for the

appellant/defendant No.1, would submit that the

first appellate Court is absolutely unjustified in

interfering with the judgment and decree of the

trial Court and decreeing the suit filed by the

plaintiffs merely on the basis of statement of Munni

Bai (DW­1) that in partition, more land was given to

Muneshwar. Such a finding recorded by the first

appellate Court is totally perverse and contrary to

evidence of Manchan @ Kokdi (PW­1), Somaru (PW­2)

and Jugul (PW­3) as well as defendant No.1­Munni

Bai. If the finding of the trial Court is accepted,

then out of 35 decimal of land, the plaintiffs would

get 29 decimal of land and defendant No.1 would get

only 6 decimal of land. Therefore, the impugned

judgment and decree of the first appellate Court

deserves to be set aside by answering the

substantial questions of law in favour of defendant

No.1 and against the plaintiffs.

6. Mr.A.N.Pandey and Mr.Bhuprendra Mishra, learned

counsel for the respondents/plaintiffs and legal

representatives of the plaintiffs, would support the

impugned judgment and decree of the first appellate

Court and submit that the partition already held and

acted upon cannot be reopened and defendant No.1

herself has admitted that since Muneshwar had more

issues, therefore, in partition 29 decimal of land

was given to him. Therefore, the first appellate

Court is absolutely justified in granting decree in

favour of the plaintiffs particularly in view of

finding in earlier suit that daughters have no right

in the property of their father, as such, the appeal

deserves to be dismissed.

7. I have heard learned counsel appearing for the

parties and considered their rival submissions made

hereinabove and also went through the records with

utmost circumspection.

8. Suit land bearing Khasra Nos.2377, 2376, 2378 and

2379 situated Kouwadand, District Surguja was

settled in favour of the plaintiffs predecessor­in­

title Muneshwar and father of defendant No.1 Laxman

by Surguja settlement vide Ex.D­3. Thereafter with

respect to land bearing Khasra Nos.2377 and 2376,

Civil Suit NO.4A/82 was filed for partition by

Laxman. That suit was dismissed on 26.7.83 vide

Ex.D­4A and it was held that the suit land bearing

Khasra No.2377 area 6 decimal was held by Laxman and

the suit land bearing Khasra No.2376 area 8 decimal

was held by Muneshwar and said decree was affirmed

by the first appellate Court in Civil Appeal

No.56A/86 on 30.8.1987. It is pertinent to mention

here that the suit land bearing Khasra Nos.2378 and

2379 was not subject­matter of litigation in the

earlier suit. Thereafter, Laxman sold total 16.5

decimal of land vide Ex.D­5 in favour of his

daughter/defendant No.1 which necessitated for

filing of instant suit by legal representatives of

Muneshwar for declaration of title and cancellation

of sale deed dated 16.5.89 stating inter­alia that

the suit property shown in Schedule "A" of the

plaint was the property of Laxman and Muneshwar,

whereas the suit property shown in Schedule "B" of

the plaint was the property of Laxman and the suit

property shown in Schedule "C" of the plaint i.e. 29

decimal was the property of Muneshwar and now the

plaintiffs. Therefore, Laxman has no right to

alienate the suit property more than 6 decimal of

land. In a suit filed, stand of defendant No.1 was

that her father has rightly executed sale deed of

his share in the suit property in her favour and the

suit land bearing Khasra No.2377 area 6 decimal has

already held by his father Laxman and the land

bearing Khasra No.2376 area 8 decimal has already

been held by Muneshwar by earlier civil suit.

However, the land shown in Khasra Nos.2378 and 2379

both have equal share and therefore, they were

cultivating in their respective lands and Laxman,

her father has rightly sold the part of suit land in

her favour.

9. The trial Court dismissed the suit holding that the

land bearing Khasra Nos.2377 and 2376 has already

held to be Laxman and Muneshwar respectively and in

remaining part, Laxmnan and Muneshwar both were in

possession and Laxman has rightly sold his part of

suit land in favour of her daughter Munni Bai, as

such, the plaintiffs are not entitled for any

relief, which has been interfered with by the first

appellate Court basically relying upon the statement

of defendant No.1­Munni Bai, in which she has stated

that more lands were given to Muneshwar as he has

more issues than Laxman and decreed the suit except

6 decimal of land.

10. From perusal of the records, it is quite vivid

that in earlier civil suit, Laxman, father of

defendant No.1 Munni Bai, has been held to be owner

of the land bearing Khasra No.2377 area 6 decimal

and Muneshwar, predecessor­in­title of the

plaintiffs, has held to be owner of the land bearing

Khasra No.2376 area 8 decimal. Those findings cannot

be challenged now and it is binding on both the

parties. However, the dispute relates to the land

shown in Schedule "C" of the plaint bearing Khasra

No.2376 area 0.08 decimal, Khasra No.2378 area 0.14

decimal and Khasra No.2379 area 0.07 decimal. The

trial Court held that the properties of these khasra

numbers were also equally divided between Muneshwar

& Laxman and Laxman has alienated his part of land

in favour of his daughter i.e. defendant No.1­Munni

Bai appreciating the evidence on record particularly

evidence of Manchan @ Kokdi (PW­1), Somaru (PW­2)

and Jugul (PW­3) holding that these lands i.e.

Khasra Nos. 2378 and 2379 were equally divided among

Muneshwar & Laxman and they were in possession of

their respective share and Laxman has alienated his

part of land in favour of her daughter. The first

appellate Court relying upon the statement of

defendant No.1­Munni Bai (para­5) that some more

land was given to Muneshwar as he has more issues

i.e. 5 issues (5 in number), therefore, some more

land has been allotted to him.

11. A careful perusal of statement of Munni Bai

(DW­1) would show that she has not stated that in

partition Laxman has given only 6 decimal of land

and remaining 29 decimal of land was given to

Muneshwar. Her statement has been misread by the

first appellate Court. Similarly, statement of

Kedwaram (DW­3) has also been misread by the first

appellate Court to reach a conclusion that they have

admitted that some more land (29 decimal out of 35

decimal) was given to Muneshwar and now the

plaintiffs. Total suit land i.e. 35 decimal was

settled jointly in favour of Muneshwar and Laxman in

Surguja Settlement and it is the case of defendant

No.1 that in earlier civil suit, it has been

recorded that they have equally divided the suit

property between them, as such, there was no reason

for the first appellate Court to reverse the

judgment and decree of the trial Court that the land

bearing Khasra Nos.2378 and 2379 was equally divided

among Muneshwar and Laxman and the plaintiffs are

not entitled for entire land i.e. 29 decimal giving

only 6 decimal land to Laxman. It appears to be

totally unjustified also that the property jointly

acquired by Muneshwar and Laxman, predecessor­in­

title of the plaintiffs and defendant No.1, the

plaintiffs will get 29 decimal of land and defendant

No.1 or her father Laxman will get only 6 decimal of

land merely because Laxman has no male issue and the

plaintiffs are in dominating position, it cannot be

held that Laxman has got only 6 decimal of land in

partition and remaining 29 decimal of land fell in

share of Muneshwar, father of the plaintiffs, as

such, the first appellate Court is absolutely

unjustified in interfering with the judgment and

decree of the trial Court by misreading the

statements of Munni Bai (DW­1) and Kedwa Ram (DW­3)

assuming the fact which is not available on record,

as such, finding of the first appellate Court being

perverse and contrary to record is liable to be set

aside.

12. Accordingly, the judgment and decree of the

first appellate Court is hereby set aside and that

of the trial Court is hereby restored meaning

thereby the suit would stand dismissed.

13. The second appeal is allowed to the extent

indicated hereinabove leaving the parties to bear

their own cost(s).

14. Appellate decree be drawn­up accordingly.

Sd/-

(Sanjay K.Agrawal) Judge B/­