Sudama Yadav And Ors vs Jagdish And Ors
2022 Latest Caselaw 3535 Chatt

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                                                                  NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                         SA No. 329 of 2012

                     Reserved on : 03.03.2022

                     Delivered on : 12.05.2022

1.    Sudama Yadav, S/o Balicharan, Aged About 47 Years.
2.    Sukwari, D/o Balicharan, Aged About 62 Years.
3.    Phoolkunwar, D/o Balicharan, Aged About 42 Years.
4.    Dhaneshwar, S/o Balicharan, Aged About 40 Years.
      All belong to Caste- Ahir, R/o Village- Kuniya, Tahsil- Sitapur,
      District- Surguja (C.G.)
      Present Address of Appellant No. 2- Bada Damali, Tahsil-
      Ambikapur & Appellant No. 3- Village- Ghoghitangar, Tahsil-
      Sitapur, District- Surguja (C.G.)
                                                        ---- Appellants
                                  Versus

1.    Jagdish, S/o Baldev, Aged About 72 Years.
2.    Tribhuwan Baldev, Aged About 62 Years.
3.    Laxman, S/o Baldev, Aged About 72 Years.
      All belong to Caste- Ahir, R/o Village- Narmadapur Khalpara,
      Police Station- Kamleshwarpur, Tahsil- Sitapur, District- Surguja
      (C.G.)
4.    State of Chhattisgarh, through the Collector- Surguja, Ambikapur
      (C.G.)
                                                      ---- Respondents

For Appellants                :       Mr. Rakesh Pandey, Advocate.
For State/Respondent No. 4    :       Ms. Usha Chandrakar, P.L.


            Hon'ble Shri Justice Narendra Kumar Vyas

                         C.A.V. JUDGMENT

1.    Heard on admission.

2. The second appeal has been filed by the appellants/plaintiffs under Section 100 of the C.P.C. against judgment and decree dated 04.05.2012 passed by Second Additional District Judge,

Ambikapur, District- Surguja (C.G.) in Civil Appeal No. 116A/2011 (Sudama Yadav & others Vs. Jagdish & others) affirming the judgment and decree dated 23.02.2008 passed by Civil Judge Class-II, Sitapur, District- Surguja (C.G.) in Civil Suit No. 40A/2007, which has been filed by the plaintiffs for declaration of title and permanent injunction.

3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 40A/2007 which was filed by the plaintiffs for declaration of title and permanent injunction.

4. The brief facts, as reflected from the plaint averments, are that the plaintiffs have filed a civil suit before trial Court mainly contending that the property mentioned in Schedule-A of the plaint was jointly recorded in the name of plaintiffs' father, defendants' father and their uncle namely Budhai. The property mentioned at Schedule-C of the plaint situated at Village- Narmadapur, Tahsil- Sitapur (total 6 plots) area admeasuring 5.10 acres is purchased from the nucluous from the joint family property and the property mentioned at Schedule-B has been purchased in the name of defendants' father. The names of plaintiffs' father and defendants' father were recorded in the property mentioned in Schedule-B & C and after death of Baldev, names of their sons have been recorded. It has been further contended that the plaintiffs' father, defendants' father and uncle were residing in the same house, plaintiffs' father being elder one was manager of the family. Subsequently, as per family settlement, Baldev started living at Narmadapur and doing agriculture work in the property mentioned at Schedule-B & C admeasuring 11 acres and the property situated at Village- Kuniya mentioned in Schedule-A is recorded in the name of plaintiffs' father. The uncle-Budhai expired prior to 1957, as such, his name was deleted from the property mentioned in Schedule- A and name of plaintiffs' and defendants' father were recorded. It has also been contended that the plaintiffs' father has also acquired some land, as such, their area increased to 12.59

acres.

5. Since, the property mentioned in Schedule-A name of plaintiffs' and defendants' were recorded, therefore, the defendants have moved an application for partition and vide order dated 15.10.2003, order of partition was passed, but it was held that the plaintiffs will look after the property as mentioned in Schedule-A of the plaint.

6. The plaintiffs' has preferred a revision before the Additional Collector which was rejected and Naib Tahsildar has directed to the Patwari for partition vide its order dated 19.06.2010. This has necessitated the plaintiffs to file suit for declaration claiming that names of defendants kindly be deleted from revenue records of the property mentioned in Schedule-A of the plaint and they be declared title holder of the property. The defendants be also restrained from interfering in the property mentioned in Schedule-A of the plaint.

7. Defendants No. 1 to 3 have filed their written statement denying the allegations made by the plaintiffs in the plaint mainly contending that except the fact that the property mentioned in Schedule-B & C of the plaint has been purchased by Baldev from Mahadev, but it is denied that the said property has been purchased from nucleus of the joint family property. It has also been contended that on marriage of Baldev, his father-in-law gave 10 buffaloes and other property in dowry and has started doing dairy business at Village- Narmadapur and after selling the milk, he has purchased the land mentioned at Schedule-B & C of the plaint. It has been further contended that Budhai expired issue-less and his wife got re-marriage and thereafter, she expired. It has been further contended that Surguja State was merged with the Government of India in the year 1948 at that time, old Hindu Law was enforced, accordingly to that law, the wife has no right over the property of her husband. At the time Budhai expired, Baldev & Balicharan were residing separately in their separate house. It has been further contended that the

property situated at Village- Kuniya is ancestral property which has been partitioned and the land situated at Village- Kuniya, Baldev and Balicharan have constructed their own house.

8. It has been denied that any family settlement has been arrived with regard to the property situated at Village- Narmadapur (Schedule-B & C) and Village- Kuniya (Schedule-A). It has also been denied that the property mentioned in Schedule-B & C was purchased from the necluous of joint family. It has been further contended that after settlement of revenue records, the land acquired by the plaintiffs' father and defendants' father comes to 12.29 acres. It has also been contended that in pursuance of order dated 19.06.2006 passed by Naib Tahsildar, names of Jagdish, Laxman & Tribhuvan have been recorded in the property and they were in possession of the suit property. After partition, plaintiffs and defendants are residing in their share of the property provided to them in their share. Hence, it has been prayed by defendants No. 1 to 3 for dismissal of the suit.

9. On pleadings of the parties, the learned trial Court has framed as many as five issues- (1) Whether any family settlement was arrived for doing agricultural work by plaintiffs' father in the land mentioned at Schedule-A? (2) Whether the plaintiffs are entitled to be declared title holder of the suit property mentioned at Schedule-A of the plaint? (3) Whether the plaintiffs are entitled to get permanent injunction with regard to the suit property? (4) Whether the valuation of the suit is propet? (5) Relief and costs?

10. The plaintiffs to substantiate their contention have examined witnesses namely Sudama Yadav (PW-1), Amar Bhagat (PW-2), Jagdish (PW-3) and exhibited documents namely certified copy of survey settlement (P/1), Kishtabandi Khatouni for the year 2005 (P/2), order passed by Naib Tahsildar dated 19.06.2006 (P/3), list of partition (P/4), mutation register (P/5) & Panchnama (P/6). Defendants examined Jagdish Yadav (DW-1), Rajkumar Yadav (DW-2) & Chamru (DW-3).

11. Sudama Yadav (PW-1) examined before the trial Court wherein

he has reiterated the stand taken in the plaint. In the cross- examination, he has admitted that prior to nine years, it was brought to his notice that name of Jagdish and others have been recorded in the property mentioned at Schedule-B & C of the plaint, but he has not filed any civil suit. He has admitted that he has filed application before Additional Collector for deleting name of defendants, which has been dismissed. He has admitted that after marriage, his father has done oral partition and living separately. He has admitted that the names of the defendants have been recorded in the revenue record. He has also admitted that he has made an application for deleting the names of the defendants before the Additional Collector and Tahsildar, which has been dismissed. He has also admitted that he has not filed any document with regard to purchase of 50 acres of land by the defendants or they are in possession of the property.

12. Amar Bhagat (PW-2) examined before the trial Court wherein he has admitted that plaintiffs' and defendants' father are separately earing from their property situated at Village- Kuniya.

13. Jagdish (PW-3) who was Sarpanch at the relevant time, has extensively cross-examined before the trial Court on Panchnama (Ex.P/6) wherein he has admitted that before 1948, partition was taken place between Bali & Baldev. He has admitted that according to the partition, plaintiffs and defendants are living and doing agricultural work separately on ½ of the share of ancestral property. He has admitted that the ancestral property has already partitioned. He has also admitted that the plaintiffs are in possession of the property, which has purchased by them. He has also admitted that the ancestral property was partitioned and out of that income, buffaloes and cows were purchased and they have purchased property at different places.

14. Jagdish Yadav (DW-1) by way of affidavit has been examined wherein he has reiterated the stand taken by him in the written statement and was cross-examined by the plaintiffs, wherein he

has admitted that there are 60 & 31 acres of land at Village- Narmadapur & Kuniya respectively. He has admitted that he is residing at Village- Kuniya for the last 50 years. He has denied that Balicharan was doing expenditure for his whole family. He has admitted that the properties situated at Village- Narmadapur and Kuniya are the property of joint family property. He has denied that Baldev and Balicharan were jointly residing. He has stated that the partition has already taken place 50 years back. He has denied that the partition was taken place before year 2002. He has denied that Balicharan has purchased the land at Village- Narmadapur & Kuniya from self-earing. He has also admitted that he has taken loan from the property on the property at Village- Kuniya.

15. Rajkumar Yadav (DW-2) examined before the trial Court and he has taken same stand which the defendants have taken in their written statement. In the cross-examination, he has stated that the property situated at Village- Kuniya has been recorded in name of Jagdish. He has denied the fact that at present Sudama is earning from the property situated at Village- Kuniya. He has admitted that both are earning from that property.

16. Chamru (DW-3) examined before the trial Court and in the cross-

examination, he has admitted that Sudama is doing agricultural work in the property situated at Village- Kuniya. He has admitted that Balicharan and Baldev were residing together. He has admitted that Balicharan has acquired the property situated at Village- Kuniya. He has also admitted that Sudama is earing from the property situated at Village- Kuniya.

17. Learned trial Court after appreciating the evidence, material placed on record, has dismissed the suit filed by the plaintiffs by recording findings that the plaintiffs have failed to prove the facts with regard to the family settlement, therefore, it cannot be held that the plaintiffs are entitled to be declared as exclusively title holder of the suit property mentioned at Schedule-A of the plaint and all the issues have been decided against the plaintiffs and

finally the suit was dismissed. Against that, the plaintiffs have preferred first appeal before the First Appellate Court i.e. Second Additional District Judge, Ambikapur, District- Surguja, which has also been dismissed by the First Appellate Court by recording a finding that as per Panchnama (Ex.P/6) dated 26.07.1970, it is not established that property situated at Village- Kuniya has been settled in the name of Balicharan as in the records of Surguja State Settlement (Ex.P/1) filed by the plaintiffs, name of Balicharan, Baldev and Budhai have been recorded, as such, the recital of the fact in Ex.P/6 has been rebutted.

18. Learned First Appellate Court has also recorded finding while dismissing the appeal that the plaintiffs have not filed any civil suit declaring the order passed by the Tahsildar with regard to the property mentioned at Schedule-A of the plaint, as such, the ground taken by the plaintiffs that the property mentioned at Schedule-A, B & C are the properties belonging to the joint family property, as such, the Tahsildar should partition on the family property, therefore, the order of partition is null and void, is not acceptable.

19. Learned First Appellate Court has also dismissed the appeal in absence of any specific pleading with regard to the generation of the property except property mentioned at Schedule-A, B & C from nucleus of joint family property and they are taking the stand for the first time that except the property situated at Village- Kuniya and Narmadapur other properties also exist by the joint family, which is reflected in Ex.P/5. This should also be partitioned. It has been observed by the learned First Appellate Court that during pendency of the suit, the plaintiffs have filed application for amendment where they have tried to seek permission to take plea that the property mentioned at Schedule- B & C of the plaint, have been purchased from joint property income, therefore, the plaintiffs are entitled to get ½ share in the property. This amendment application was rejected by the learned First Appellate Court by recording a finding that it will

change nature of the case. The learned First Appellate Court after appreciating the evidence, material placed on record has dismissed the appeal filed by the plaintiffs. Against that, the plaintiffs have preferred the instant Second Appeal before this Court.

20. From evidence adduced before the trial Court, it is quite vivid that the plaintiffs are unable to establish family settlement as has been arrived at between the family members. Accordingly, they are in possession of their respective shares. The plaintiffs are not able to adduce evidence that as per family settlement, their names have been recorded in the revenue record and family settlement has also not been filed. The witness Panchnama (Ex.P/6) namely Jagdish (PW-3) in his cross-examination, has admitted that mother of the plaintiffs has come in the year 1977 and Ex.P/6 was recorded on 26.07.1970 and date of signature has been mentioned as 02.04.1991. He has admitted that seal and date have also not been mentioned at the time of putting seal and signature in Ex.P/6. He has not mentioned that the plaintiffs' mother has brought the Panchnama and thereafter, she has put her signature. He has also admitted that he is not aware about plaintiffs' and defendants' forefather, but he has stated that the partition has been taken place prior to year 1948. It has been brought to his notice through villagers. The learned trial Court has raised doubt over the authenticity of Panchnama (Ex.P/6) and has recorded specific finding that in Surguja State Settlement receipt (Ex. P/1) name of Balicharan, Baldev & Budhai, has been recorded, which is of the year 1957. As such, the civil suit has been rightly dismissed by the learned trial Court and against that the appeal has also been rightly dismissed by the learned First Appellate Court which is neither perverse nor- consideration of vital evidence or law, which can throw light on the issue raised, therefore, no substantial question of law is involved in this case.

21. Upon perusal of entire evidence, there is no any substantial question of law requiring to be formulated for hearing of this second appeal. There is a concurrent finding of fact with regard to non-existence of family settlement between family members of plaintiff and defendant 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.& others1, 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 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)."

22. 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.

23. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for

1 (2020) 4 SCC 659

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 the C.P.C. No order as to costs.

24. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Arun