Pritam And Others vs Bharatram And Others
2021 Latest Caselaw 684 Chatt

                             1

                                                       NAFR
        HIGH COURT OF CHHATTISGARH AT BILASPUR
                 Second Appeal No. 134 of 2007
             Judgment reserved on 21/06/2021
             Judgment delivered on 29/06/2021

  1. A. Pritam S/o Sunher, Aged about 47 years.

    B. Mansharam, S/o Sunher, Aged about 42 years.

    C. Balchandra S/o Sunher, Aged about 27 years.

    D. Balkrishna S/o Sunher, Aged about 24 years.

    E. Kamala D/o Sunher, Aged about 40 years.

    All R/o Village Selegaon, Tahsil Bhanupratappur,
    Distt. Kanker, Chhattisgarh.

                                 ­­­Appellants/Plaintiffs

                           Versus

  1. Bharatram Sahu S/o Shri Johan Sahu, Aged about 46
    years.

  2. Banshilal Sahu S/o Shri Johan Sahu, Aged about 44
    years.

  3. Anand Sahu, S/o Johan Sahu, Aged about 40 years.

    All R/o Village Selegaon, Tahsil Bhanupratappur,
    Distt. Kanker, Chhattisgarh.

  4. State of Chhattisgarh, Through Collector, Kanker,
    Chhattisgarh.

                             ­­­ Respondents/Defendants

For Appellants :­ Mr. Ramesh Kumar Sharma, Advocate For Respondents :­ Mr. Rajkumar Pali, Advocate For State :­ Mr. Ravi Bhagat, Dy. G.A.

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

1. This second appeal preferred by the

appellants/LRs. Of original plaintiff was

admitted for hearing on 02/04/2019 by

formulating the following two substantial

questions of law :­

"1. Whether the lower appellate Court, by relying upon Kistbandi Khatoni, a revenue paper (Ex.P.2), has erred in holding that Kapil, the original defendant No. 1, was the owner of the property in question and acquired his interest upon the death of Shyama Bai and thereby erred in holding that the registered deed of sale dated 05.07.1980 (Ex.D.1) was validly executed by him in favour of original defendant No.2, namely, Johan ?

2. Whether the finding of the lower appellate Court holding that original defendant No. 1 Kapil is the husband of Shyama Bai while reversing the finding of the trial Court in relation to issue No. 7, is perverse ?"

[For the sake of convenience, the parties will

hereinafter be referred to as per their status

and ranking given in the plaint before the trial

Court.]

2. Original plaintiff - Sunher filed a suit for

declaration of title and recovery of possession

stating inter alia that the suit property

bearing Khasra No. 86.1 area 4.10 decimal was

originally held Hirau S/o Bhukhau Satnami which

he obtained from plaintiff's uncle Sukrit

Satnami. Hirau only had one daughter namely

Shyambai who was brought up and taken care of by

the plaintiff after the death of Hirau. After

the death of Shyambai, original defendant No. 1

Kapil got his name mutated in the revenue

records on 27/10/78 against which the appeal

preferred was dismissed by the S.D.O., as such,

defendant No. 1 has no right or title over the

suit property and he further had no right to

alienate the suit property in favour of

defendant No. 2 Johan vide sale deed dated

05/07/1980 (Ex. D/1).

3. Defendant No. 1 filed his written statement

stating inter alia that he had right, title over

the suit property and he has rightly alienated

the said suit property in favour of defendant

No. 2 as he was the brother of Chaitu Satnami -

husband of Shyambai and after the death of

Chaitu Satnami, Shyambai married with him in

Choodi form. Defendant No. 2 also supported

defendant No. 1 stating that he has purchased

the suit property from defendant No. 1 as

Shyambai was the title­holder of the suit

property and defendant No. 1 being her husband

was fully entitled to alienate the suit property

in his favour.

4. Learned trial Court, upon appreciation of oral

and documentary evidence on record, decreed the

suit of the plaintiff for declaration of title

and recovery of possession vide judgment and

decree dated 23/07/1999 holding that defendants

have failed to prove that defendant No. 1 was

the husband of Shyambai, as such, he had no

right or title to alienate the suit property in

favour of defendant No. 2. On appeal being

preferred by defendant No. 2, learned first

appellate Court reversed the judgment and decree

passed by the trial Court and dismissed the suit

vide its impugned judgment and decree dated

14/07/2006 against which this second appeal has

been preferred by the appellants/LRs. Of

original plaintiff under Section 100 of CPC in

which two substantial questions of law have been

framed and set out in the opening paragraph of

this judgment.

5. Mr. Ramesh Kumar Sharma, learned counsel for the

appellants/LRs. Of original plaintiff, would

submit that the first appellate Court is

absolutely unjustified in holding that defendant

No. 1 Kapil, who died during the pendency of the

suit, was the husband of Shyambai and he has

rightly alienated the suit property in favour of

defendant No. 2 as Shyambai was married to

Chaitu Satnami and there is absolutely no

evidence on record to hold that Shyambai, at any

point of time, was married to defendant No. 1 by

choodi form. He would rely upon the decision

rendered by the Madhya Pradesh High Court in the

matter of Kanhaiyalal & Anr. v. Ram Kunwarbai 1

and submit that the instant appeal be allowed by

setting aside the impugned judgment and decree

passed by the first appellate Court.

6. Mr. Rajkumar Pali, learned counsel for

respondents No. 1 to 3/ LRs. Of defendant No. 2,

would support the judgment and decree passed by

the first appellate Court and submit that

defendant No. 1, being the husband of Shyambai,

has rightly alienated the suit property in

favour of defendant No. 2, as such, plaintiff

has no right title over the suit property and

the instant appeal deserves to be dismissed.

7. I have heard learned counsel for the parties,

considered their rival submissions made herein­

1 1994 JLJ 223

above and went through the records with utmost

circumspection.

8. Learned trial Court, in the suit filed by the

plaintiff, while deciding issue No. 1 as to

whether plaintiff is title­holder of the suit

land, answered the issue holding that plaintiff

is the title­holder of the suit land and decreed

the suit of the plaintiffs by further holding

Kapil in favour of defendant No. 2 Johan is

invalid and on appeal being preferred by LRs. of

defendant No. 2, learned first appellate Court

reversed the findings recorded by the trial

Court and dismissed the suit. However, the first

appellate Court simply held that on the basis of

Kistbandi Khatoni, a revenue paper (Ex. P/2),

defendant No. 1 Kapil is the owner of the suit

property and he had the right and title to

alienate the said suit property in favour of

defendant No. 2.

9. Admittedly and undisputedly, the suit property

was held by Shyambai. Defendant No. 2 Johan has

been examined before the trial Court as D.W. 1

and in paragraph 5 of his statement, he has

clearly admitted that Shyambai was earlier

married to the brother of defendant No. 1 Kapil

namely Chaitu and he has also admitted that the

suit land which he has purchased from defendant

No. 1 was earlier recorded in the name of

Shyambai whereas he has also admitted that at

the time of sale of the suit property, Shyambai

was staying with defendant No. 1 and she died

issueless.

10. It is the claim of the plaintiff that Shyambai

was married to Chaitu and he was her legally

wedded husband and defendant No. 1 Kapil was

never legally married with Shyambai even after

did not inherit the suit property held by

Shyambai and he had no right and title to

alienate the suit property in favour of

defendant No. 2 Johan.

11. It is well settled law that mutation in the

revenue records does not confer any right or

title upon the person in whose name the land is

recorded in the revenue records and it is only

for the purpose of keeping the records upto date

and it only enables the person in whose favour

mutation is ordered to pay the land revenue. As

such, the first appellate Court fell into error

in relying upon Kistbandi Khatoni, a revenue

paper (Ex. P/2) and holding that defendant No. 1

is the title­holder of the suit property being

the husband of Shyambai and he was fully

entitled to alienate the suit property in favour

of defendant No. 2. There is overwhelming

evidence on record to hold that Shyambai was

only staying with defendant No. 1 and there was

no relation of husband and wife between them as

defendant No. 1 was never married to Shyambai

legally even after the death of her husband

Chaitu. As such, the finding recorded by the

Kapil, being the husband of Shyambai, inherit

the suit property after her death and he had the

right and title to alienate the suit property in

favour of defendant No. 2 Johan is a finding of

fact which is not based on evidence on record

and it suffers from perversity and illegality.

12. As a fallout and consequence of the aforesaid

discussion, both the questions of law are

answered in favour of the plaintiff and against

the defendants and the judgment and decree

passed by the first appellate Court is hereby

set aside and that of the trial Court is

restored.

13. The second appeal is allowed to the extent

indicated herein­above. No order as to cost(s).

14. Decree be drawn­up accordingly.

Sd/­ (Sanjay K. Agrawal) Judge

Harneet