Bhagwati And Ors vs Dwarka Prasad And Ors
2022 Latest Caselaw 3708 Chatt

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                                                                      NAFR

              HIGH COURT OF CHHATTISGARH, BILASPUR
                        Second Appeal No. 61 of 2013

                    Judgment Reserved on 06/04/2022
                    Judgment Delivered on 14/06/2022


 1. Bhagwati W/o. Manglaram Dheemar, aged about 60 years, R/o.
   Gotiyardih, Tahsil Abhanpur, Police Station and Post Abhanpur, District
   Raipur (CG).

 2. Suraj Bai, W/o. Baratu Dheemar, aged about 65 years, R/o. Darbar
   Mokhli, Tahsil Patan, Police Station and Post Patan, District Durg (CG).

 3. Chandaru W/o. Dashru Dheemar, aged about 52 years, R/o.
   Mahamayapara, Patan, Tahsil, Patan, Police Station and Post Patan,
   District Durg (CG)

                                             ---------Appellant/Defendants

                                   VERSUS


 1. Dwarka Prasad, S/o. Late Durga Prasad Dheemar, aged about 65 years,

 2. Bhuwanlal S/o. Late Malau Dheemar, aged about 73 years,

 3. Lakhanlal, S/o. Late Milau Dheermar, aged about 68 years,

 4. Gariba, S/o. Late Manrakhan, aged about 50 years,

 5. Siya, S/o. Late Manrakhan, aged about 48 years,

 6. Shevnarayan, S/o. Late Manrakhan, aged about 55 years,

 7. Munna S/o. Manrakhan, aged about 42 years,

 8. Kunjan Bai, D/o. Late Manrakhan, aged about 74 years,

 9. Sona Bai, W/o. Late Hridayram Dheemar, aged about 65 years,

10. Onkar @ Bhuvneshwar, S/o. Late Hridayram Dheemar, aged about 33
   years,

   All above are R/o. Village Patan, Mahamayapara, Tahsil -Patan, Police
   Station and Post Patan, District Durg (CG)
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11. State of Chhattisgarh through Collector Durg, Police Station and Post
     Durg, District Durg (CG)

                                                             ----------Respondent/Plaintiff
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For the Appellants : Mr. Manoj Paranjpe, Advocate

For the Respondents : Mr. C.B. Kesharwani, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment

1. Heard on admission.

2. This Second Appeal under Section 100 of Civil Procedure Code, has been filed by the defendants against the judgment and decree dated 16.10.2012 passed by 5th Additional District Judge, Durg District Durg in Civil Appeal No. 1-A/2011 affirming the judgment and decree dated 07.01.2004 passed by Fifth Civil Judge Class-II Durg District Durg in Civil Suit No. 68-A /2002.

3. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 68-A /2002 before the trial Court.

4. The necessary facts for the disposal of the present appeal, in short, are that the plaintiffs have instituted a civil suit for declaration of title, partition and possession before the learned Civil Judge Class-2 Durg, mainly contending that plaintiffs and defendants No. 1 to 8 have joint property situated at village Patan, P.H.No. 30, R.N.M, Tahsil Patan, District Durg, khasra No. 1471 area 0.23 hectares. It is contended that defendant No.1 (Mehattar) has filed an application before Tahsildar Patan for mutation his name only and for deletion of the name of other co-owners from the record as partition has not been done between them which was allowed on 05.01.1995. Against that the plaintiffs and defendant No. 7 and 8 have filed an appeal before Sub Divisional Officer, Patan which was allowed and remanded the case for deciding afresh. Tahsildar, Patan vide its order dated 03.02.1997 has recorded a finding that the property belonged to Mehattar/defendant No.1 only, whereas it is a joint property, in which plaintiff No.1, son of Hridaya and

his wife defendants No. 7 and 8 have 1/3 share, plaintiffs No. 2, 3 and other co-owners have 1/3 share, defendant No. 1 to 6 have also their shares in the property. It is further contended that deceased Rameshwar and Rama have 1/3 shares. It is further contended that against the order of Tahsildar, Patan on 03.02.1997, the plaintiff and defendant No. 7 and 8 have preferred an appeal before SDO, Patan. Sub Divisional Officer, Patan vide its order dated 22.08.1997 has recorded a finding that since the plaintiffs are in possession of their shares in view of earlier partition, therefore, no partition is required to be ordered and dismissed the appeal. Against the order of SDO, Patan, the plaintiff and defendant No. 7 and 8 have preferred an appeal before Additional Commissioner, Raipur which was rejected vide order dated 11.02.2002. It has further contended that the Additional Commissioner, Raipur has rejected the appeal and recorded the finding that way back 25 years ago, partition has been done and its document has also been filed whereas as per law if partition was done between the parties, it should be registered and document should be filed before the Court below but no such registered document was produced before the Revenue Court. It is further contended that neither the defendants have put their signature on the document nor plaintiffs have proved it, still the Revenue Court has recorded the finding that the partition has taken place and defendant No.1 is the title holder of the property. Therefore, the defendants have filed the present suit for declaration and partition. On above factual matrix, the plaintiffs have prayed that the property situated at village Patan, PH No. 30, Tahsil Patan, District Durg bearing khasra No. 1472, area 0.23 be declared as the joint property and their shares be granted.

5. Defendant No.1 filed his written statement denying the allegation made in the plaint contending that land situated at village Patan,PH No. 30, Tahsil Patan, District Durg bearing khasra No. 1472, area 0.23 has been received by the defendant No.1 in the partition and the partition has taken place prior to 30 years and documentation has been done. It is also contended that the lands were situated at village Khorpa and Patan and for both the villages partitions have been done 30 years prior.

Defendant No.1 is doing agricultural work on the land situated at village Khorpa and Patan. It is further contended that the order passed by the Revenue Authority was legal and justified and would pray for dismissal of the suit.

6. On the pleading of the parties, learned trial Court has framed as many as five issues. The plaintiffs to substantiate their claim has examined Bhuvanlal (PW-1), Nathuram Dewangan (PW-2), Kamaldas Vaishav (PW3), and exhibited documents order dated 11.02.2002 (Ex.P-1), Order of SDO dated 05.01.1996 (Ex.P-2), Khatauni Kistabandi (Ex.P-3). The defendants to substantiate their claims have examined Mehattar (DW-1), Banshi (DW-2), Sonabai (DW-3) and exhibited documents partition dated 23.05.1960 (Ex.D-1), Khasra Panchsala (Ex.D-2), Kistbandi khatauni (Ex.D-3), Map (Ex.D-4), Khasra Panchasala (Ex.D-5), Kistbandikhatauni (Ex.D-6), Order dated 5.1.1995 (Ex.D-7), Order dated 3.2.1997 (Ex.D-8), Order dated 22.08.1997 (Ex.D-9), Order dated 11.02.2022 (Ex.D-10).

7. Bhuvanlal (PW-1) has stated in his examination-in-chief, that the land situated at village Patan has not been partitioned. In the cross- examination, he has stated that he is having other lands at village Patan and joint land at Village Khorpa, which they have taken prior to 15-16 years. He has stated that the land situated at village Patan is in the joint account and he has not moved any application for partition. The other witness Nathuram Dewangan (PW-2), in his examination-in-chief, has also supported the case of the plaintiff and stated that there was no partition between the parties and Mehattar father's name is Bihari, Dwarika father's name is Durga and Bhuvan father's name is Milau. In the cross-examination, he has stated that the plaintiff and the defendants lands are in village Khorpa and Patan. He has admitted that the lands where paddy was cultivated were partitioned at Korpa and Patan. This witness has shown document D-1 which is unregistered document, therefore, the plaintiff counsel has raised objection and learned trial Court has taken note of the fact and has observed that the objection will be considered at the time of judgment. He has further stated that being Sarpach, he has put his signature. He has admitted that the partition

dated 23.05.1970 Ex.D-1 is correct. He has admitted that the paddy is being taken was from partitioned land not from the other land. He denied that there was partition between the plaintiff and defendants prior to 25 years. He has also admitted that plaintiff has also put his signature in Ex.D-1 and he has voluntary said he has put his signature in Ex.D-1. He has admitted that Manrakhan and Mehattar have separated their lands, as such he has put his signature as witness. Kamaldas Vaishanav (PW-

3), has stated that the property situated at village Khorpa and Patan has been partitioned.

8. The defendant was examined himself and he has reiterated stand which he has taken in written statement, this witness was cross-examination and he has stated that the disputed property situated at Patan has already been partitioned in the year 1970. The partition took place between Manrakhan and Mehattar and at that time the lands were not in the joint account of all the persons. He has stated that the partition has been taken place at the life time of their grandfather and he is not aware about that partition. He has stated that the names have been recorded in Ex.P-3 as land owner but the names have not been deleted though partition has taken place. He has moved an application before the Tahsildar prior to 30 years and proceedings were drawn which was decided in his favour but he has not produced any document. The partition which took place in the year 1970 was between his brothers wherein Bhuvanlal and Lakhanlal was not there. He has stated that partition between both the brothers has been done through Ex.D-1 wherein Dwarika has put his signature as witness.

9. Premu (DW-2) has supported the case of the defendants and has admitted in the cross-examination, that he is not aware whether the suit property was the ancestral property. He has stated Mehattar was looking after the suit property on behalf of all the defendants. He has stated that Bhuvan and Lakhan told Mehattar that they are co-owner of the said property. Sonabai (DW-3) in the cross-examination, has stated that they have only two houses which have been partitioned between Dwarika and Hridaya and she was not aware about the partition of other properties. She has stated that there is a mango orchard on the disputed land,

those trees were planted by our ancestors. She has stated that the partition held between forefathers and she had no knowledge about the partitioned as she was minor and unmarried.

10. Learned trial Court after appreciating the evidence, material on record has allowed the suit vide its judgment and decree dated 07.01.2004 and has held that the suit land is a joint property of plaintiff No.1, defendant No. 7 and 8 have 1/3 share, plaintiff No.2 and 3 have 1/3 share and defendants No.1 to 6 and deceased Rama and Rameshwar have 1/3 share, the plaintiffs are entitled to get partition of the suit land. Against that order, defendants have preferred first Appeal before Additional District Judge, Durg who has rejected the appeal of the defendants. Being aggrieved by the judgment and decree passed by the trial court on 16.10.2012, the defendants have filed Second Appeal under Section 100 CPC.

11. Learned Counsel for the appellants/ defendants would submit that the findings recorded by trial Court affirmed by the Appellate Court are perverse and contrary to the record as the partition was affected between Mehattar and Manrakhan on 23.05.1970 and on the same day the deed was written and executed as Ex.D-1 which requires registration. He would further submit that the Appellate Court has held in para -11 that the partition has already taken place, as such its registration is not required still committed illegality in not relying upon (Ex.D-1) as the partition already affected, this is patent illegality and substantial question of law exists and the appeal deserves to be admitted.

12. I have heard learned counsel for the appellant and perused record of the Courts below with utmost satisfaction.

13. The whole controversy of the case moves around Ex.D-1 partition deed 23.05.1970 as such it is expedient for this Court to extract below:-

बबंटववारवा नवामवा

हमकके मनरवाखन वल्द जगत ढढीमर सवाककीन पवाटन तहसढील ववो जढीलवा द गद र कके हह जवो कक आज तवा० 23/5/1970 कवो हम दवोनवो भवाई (1) कवा सकेमरवा पवार जमढीन कवा छछै पकेड़ आम कवा झवाड़ कवा बबंटववारवा मम अपनके बड़के भवाई महत्तर व. कबहवारढी

ढढीमर कवो दके कदयवा .

(2) पदरवानवा मकवान मय बवाड़ढी सकहत मनरवाखन कवा कहस्सवा उपरवोक्त ललखके बटववारके नवामके पवाबंच पबंचवो कके दरकमयवान रवाजढी खदशढी ववा हहौस हववास बगछैर नशवापवानढी कके ललखवा कदयवा कक सनद रहके यह बबंटववारवा ककयवा हह आ जमढीन जगह पर मह तथवा मकेरवा ववाररसवान ककसढी प्रकवार कवा झगड़वा ववा दवाववा करके तवो वह झझूठवा ववा नवा जवायज समझवा जवावकेगवा पदरवा नदकसवानढी कवा दकेनदवार रहकेगवा आज तवा० 23/5/1970 सके महकेत्तर कवोई ककश्म कवा हक ववा. दवाववा नहढी हछै गववाह कन.खदद बवायके मनरवाखन ढढीमर 1 नवाथझू रवाम दकेववागन गवाम पबंचवायत उपरवोक्त सदनकर समझकर अ.ककयवा सरपबंच पवाटन 23/5/70 23/5/70 2 ददः जवोहर ससींग कन. महकेत्तर व० कबहवारढी ढढीमर 3 ददः तढीजझूरवाम पवाटन 4 सदघ्घझूरवाम गगोंड ठवाकदर 23/5/70 5 ददः महकेत्तर दकेववागन पवाटन 6 दवाररकवा धढीवर पवाटन कदनवानाँक 23/5/70 (6) ददः शढीतल पटछैल पवाटन

14. From perusal of partition deed, it is clear that the partition has taken place between Manrakhan and Bihari which is explained by the Sarpanch of the village namely Nathuram Dewangan (DW-2). He has stated that he put his signature on the partition deed as witness. He has stated that partition between Mehattar and Manrakhan has taken place as they are not the real brothers. Learned first appellate Court while deciding the appeal has recorded its finding at paragraph -11 of the judgment and decreed the partition has taken place on 23.05.1970 and on the same day, the partition deed has been written, therefore, it is incumbent on the part of the defendants to get it registered. Since, the partition deed has not been registered as such it cannot be said that the partition has taken place.

15. Hon'ble Supreme Court has also examined the issue in case of Shyam Narayan Prasad vs Krishna Prasad and Others 1 relevant paragraphs 20 to 22 are extracted below:-

20. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must 1 (2018) 7 SCC 646

be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section

17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.

21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It was held thus:

"......Section 17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property......Two propositions must therefore flow:

(1) A partition may be affected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872."

16. Since the partition has taken place on 23.05.1970 and on that day partition deed has been written and from bare perusal of the partition deed it cannot be said that parties have earlier agreed for partition and thereafter it has been reduced in writing as such, it is incumbent on the part of the defendants to get registered the partition deed. Since there was no registration of partition deed, therefore, learned First Appellate Court has rightly recorded the findings that registration deed (Ex.D-1) cannot be admissible in evidence. It has also been taken note by the learned trial Court that in the partition deed, defendant No. 1 to 3 have not put their signatures. Since Ex.D-1 is inadmissible in evidence, learned Courts below have not relied upon registration deed Ex.D-1 and has passed the judgment by directing partition of the suit property which is neither perverse nor illegally warrants interference by this Court.

17. It is worthwhile mention here that learned Appellate Court has also recorded a finding that the land khasra no. 1471 which is suit land as mentioned in Ex.D-1 has illegally been partitioned by the defendant and Manrakhan has been given in the share of defendant but this fact has not been proved by defendants. From perusal of Revenue Record Ex.P-1 to Ex.P-3, it is quite vivid that it is a joint property. The plaintiff has examined Nathuram Dewangan (PW-2), this witness has stated in paragraph-5 of his cross-examination, that Mehattar was looking after the property on behalf of all the defendants and he was cultivating the land for the last 20- 25 years, this clearly shows that no partition has taken place. Learned First appellate Court has also taken note that from Ex.P-2 to Ex.P-6, wherein it has been mentioned that prior to 1994-95 the suit land was in the joint account of the parties. The defendants have initiated the proceedings of partition on the basis of Ex.D-1 in the year 1995. The plaintiff has filed the suit after passing of the order passed by Revenue Court from Ex.P-1 to Ex.D-10, as such the suit is within the limitation. Learned First Appellate Court after appreciating the evidence, material on record has dismissed the appeal.

18. Upon perusal of entire evidence, there is no substantial question of law requires to be formulated for hearing of this second appeal. There is concurrent finding of fact with regard to non partition of the suit partition of the suit property. It is a finding of fact which is neither perverse nor contrary to the record. As such also no question of law requires to be determined by this Court. The Hon'ble Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others2, has held at paragraph 28 as under:-

28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors 2 (2020) 4 SCC 659

the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para43)."

19. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

20. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.

21. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Santosh