Chattisgarh High Court
Suresh Kumar vs Smt. Shyam Kunwar And Ors on 15 February, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 418 of 2013
1. Suresh Kumar S/o Sant Ram Aged About 49 Years R/o Village-Tikari,
Tah., Post And P.S. Masturi, Civil and Revenue Distt. Bilaspur,
Chhattisgarh ---- Appellant
Versus
1. Smt. Shyam Kunwar W/o Ram Swaroop Bhagbali R/o Vill.-Bhadhoura,
Tah., Post And P.S. Masturi, Civil and Revenue Distt. Bilaspur C.G.
2. State Of C.G. Through- District Magistrate, Bilaspur C.G.
3. Smt. Sushila Bai aged about 43 years, W/o Kunwa R/o village Binaika,
Tah. Masturi, Civil and Revenue Distt. Bilaspur C.G.
4. Smt. Bachan Bai Wd/o Late Uttara Kumar Aged About 49 Years R/o
Village- Tekari, Tah. Masturi, Distt. Bilaspur C.G.
5. Sheetal S/o Late Uttara Kumar Aged About 31 Years R/o Village- Tekari,
Tah. Masturi, Distt. Bilaspur C.G.
6. Roshan S/o Late Uttara Kumar Aged About 20 Years R/o Village-Tekari,
Tah. Masturi, Distt. Bilaspur C.G.
7. Devi Nandini D/o Late Uttara Kumar Aged About 16 Years Minor,
Through- Mother And Natural Guardian- Smt. Bachan Bai, R/o Village-
Tekari, Tah. Masturi, Distt. Bilaspur C.G.
8. Siya D/o Late Uttara Kumar Aged About 13 Years Minor, Through-
Mother And Natural Guardian- Smt. Bachan Bai, R/o Village-Tekari,
Tah. Masturi, Distt. Bilaspur C.G.
9. Padmini D/o Late Uttara Kumar Aged About 9 Years Minor, Through-
Mother And Natural Guardian- Smt. Bachan Bai, R/o Village-Tekari,
Tah. Masturi, Distt. Bilaspur C.G.
10. Smt. Dharmin Bai D/o Late Uttara Kumar Aged About 36 Years W/o Shri
Ram Narayan, R/o Vill. Kotmi Sonar, Tah. And Distt. Janjgir-Champa
C.G. ---- Respondents
_____________________________________________________________________
For Appellant: : Shri Prafull N. Bharat, learned Senior Counsel
appears along with Shri Keshav Dewangan,
Advocate.
For Respondent No.2 : Shri Pravin Shrivastava, P.L.
Single Bench:Hon'ble Shri Sanjay S. Agrawal, J
Order on board
15.02.2022
1. This appeal has been preferred by plaintiff-Suresh Kumar under
Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred
to as the 'C.P.C.'), questioning the legality and propriety of the judgment
and decree dated 12.08.2013, passed by learned 5 th Additional District
Judge, Bilaspur in Civil Appeal No.13-A/2013, whereby the learned
Appellate Court, while affirming the judgment and decree of the trial
Court dated 09.04.2012, passed in Civil Suit No. 28-A/2009, has
dismissed the appeal.
2. Briefly stated the facts of the case are that the plaintiff instituted a suit
claiming declaration of title and injunction by submitting, inter alia, that
his father namely, Sant Ram was possessing certain lands in village
Tekari and after his death, he (plaintiff) came in possession thereof. It is
pleaded in the plaint that the Defendant 1-Smt. Shyam Kunwar, who
was the wife of his (Sant Ram) elder brother namely, Uttara Kumar, had
left the village and got married to one Ram Swaroop, and therefore,
Defendant-1 was not having any right or title over the property in
question. Further contention of the plaintiff is that Defendant-1 had
initiated a maintenance proceedings against her said husband (Uttara
Kumar), in which, the compromise was arrived at and Sant Ram, the
brother of the said Uttara Kumar, had executed a nominal sale in her
(defendant 1) favour, though the possession of the suit property was not
delivered to her. It is contended further that after obtaining the revenue
papers mutated in her name based upon the alleged nominal sale, the
said defendant (Smt. Shyam Kunwar) was trying to alienate the same,
therefore, the plaintiff has been constrained to institute a suit in the
instant nature, instituted on 14.07.2008.
3. While contesting the aforesaid claim, it was pleaded by Defendant 1
(Smt. Shyam Kunwar) and Defendant 10-Dharmin Bai that by virtue of
the registered deed of sale dated 18.01.1983 and 27.01.1983, said to
have been executed by said Sant Ram, the Defendant 1, has acquired
her valid right, title and interest over the property in question. Therefore,
the suit as framed deserves to be dismissed.
4. Defendants 3 to 9 have supported the claim of the plaintiff.
5. After considering the evidence led by the parties, it was held by the trial
Court that the property in question was purchased by Defendant-1
(Smt. Shyam Kunwar) under the registered deed of sale dated
18.01.1983 (Ex.D-1) and 27.01.1983 (Ex. D-2) executed by said Sant
Ram and the Revenue Papers were also found to be recorded in her
name. It was, accordingly, held that the alleged sale was not a nominal
one as alleged by the plaintiff. In view thereof, the trial Court has
dismissed the plaintiff's claim.
6. The aforesaid finding of the trial Court has been affirmed further by the
lower Appellate Court in an appeal preferred by the plaintiff.
7. Being aggrieved with the aforesaid judgment and decree, the plaintiff
has preferred this appeal. Learned counsel appearing for the
Appellant/Plaintiff submits that since the property in question was the
ancestral property, as such, said Sant Ram was not authorised to
alienate the same. However, without considering the same in its proper
manner, the Courts below have committed an illegality in holding that
he was the owner of the suit property and thereby erred further in
holding that the alleged sales were not a nominal one.
8. I have heard, learned counsel for the Appellant and perused the entire
record carefully.
9. From perusal of the record, it appears that the registered deed of sale
dated 18.01.1983 (Ex. D-1) and 27.01.1983(Ex. D-2) were executed by
said Sant Ram in favour of Defendant-1 (Smt. Shyam Kunwar). It
appears further that the suit property was owned by said Sant Ram as
the plaintiff has failed to establish the fact that it was the ancestral
property held by him as alleged in the plaint. It appears further that after
obtaining the alleged sales (Ex. D-1 and Ex.D-2) the Revenue Papers
were mutated in the name of Defendant-1 as reflected from the
Revenue Papers marked as Ex.D-3 to Ex.D-10. It appears further that
the authenticity of the alleged sales were never questioned by the
executor of it, i.e., Sant Ram, during his entire life, and only after his
sad demise in 1990, the instant suit has been instituted on 14.07.2008,
much after the execution of the alleged sales.
10. In view of the aforesaid background, the Courts below have rightly
arrived at a conclusion that the property in question was originally held
by Sant Ram and Defendant-1(Smt. Shyam Kunwar) has acquired her
valid right, title and interest by virtue of the alleged sales, which were
executed on 18.01.1983 (Ex. D-1) and 27.01.1983 (Ex.D-2), and I do
not find any infirmity in the same.
11. Consequently, I do not find any question of law much less the
substantial question of law which arises for determination in this appeal.
The appeal is, accordingly, dismissed, at the admission stage itself.
No order as to costs.
Sd/-
(Sanjay S. Agrawal)
JUDGE
vivek
