Chattisgarh High Court
Roopchand (Deleted) Through Lrs vs Laxminath (Deleted) Through Lrs on 4 November, 2022
Page 1 of 15
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 27-07-2022
Delivered on 04- 11-2022
SA No. 377 of 2010
Roopchand (Deleted) through LRs As Per Honble Court Order
Dated 25-01-2021.
1.1 - (I) Smt. Rajeshwari Dewangan Wd/o. Late Shri Roopchand
Aged About 66 Years R/o House No. 168, Mahatma Gandhi
Ward, Kondagaon, District- Kondagaon, District : Kondagaon,
Chhattisgarh
1.2 - (ii) Ku. Geetabali Dewangan D/o Late Shri Roopchand Aged
About 47 Years R/o House No. 168, Mahatma Gandhi Ward,
Kondagaon, District- Kondagaon, District : Kondagaon,
Chhattisgarh
1.3 - (iii) Manish Dewangan S/o Late Shri Roopchand Aged
About 40 Years R/o House No. 168, Mahatma Gandhi Ward,
Kondagaon, District- Kondagaon, District : Kondagaon,
Chhattisgarh
1.4 - (Iv) Mukesh Dewangan S/o Late Shri Roopchand Aged
About 33 Years R/o House No. 168, Mahatma Gandhi Ward,
Kondagaon, District- Kondagaon, District : Kondagaon,
Chhattisgarh
1.5 - (V) Gourav Dewangan S/o Late Shri Roopchand Aged
About 33 Years R/o House No. 168, Mahatma Gandhi Ward,
Kondagaon, District- Kondagaon, District : Kondagaon,
Chhattisgarh
---- Appellants
Versus
1. Laxminath (Deleted) Through LRs As Per Honble Court Order
Dated 25-01-2021.
1.1 - (A) Smt Chanddarbati Dewangan Wd/o Late Laxminath
Aged About 75 Years R/o Mahatma Gandhi Ward, Kondagaon,
District- Kondagaon (Chhattisgarh), District : Kondagaon,
Chhattisgarh
1.2 - (B) Krishna Kumar Dewangan @ Kishan Dewangan S/o Late
Laxminath Aged About 52 Years R/o Mahatma Gandhi Ward,
Kondagaon, District- Kondagaon (Chhattisgarh), District :
Kondagaon, Chhattisgarh
1.3 - (C) Narendra Dewangan S/o Late Laxminath Aged About
47 Years R/o Mahatma Gandhi Ward, Kondagaon, District-
Kondagaon (Chhattisgarh), District : Kondagaon, Chhattisgarh
Page 2 of 15
1.4 - (D) Pushpa Dewangan D/o Late Laxminath Aged About
48 Years R/o Mahatma Gandhi Ward, Kondagaon, District-
Kondagaon (Chhattisgarh), District : Kondagaon, Chhattisgarh.
1.5 - (E) Smt. Sakun Bai Dewangan W/o Baldev Dewangan
Aged About 56 Years R/o Bill. And Post Mulmula, District-
Kondagaon (Chhattisgarh), District : Kondagaon, Chhattisgarh
1.6 - (F) Smt. Anusuiya Dewangan W/o Shankar Dewangan
Aged About 50 Years R/o Jamkotpara, Kondagaon, District :
Kondagaon, Chhattisgarh.
1.7 - (G) Smt. Jamuna Bai W/o Hiraman Dewangan Aged
About 46 Years R/o Vill. And Post Nevta, District- Kondagaon
(Chhattisgarh), District : Kondagaon, Chhattisgarh.
1.8 - (H) Smt. Niramala Dewangan W/o Lachinder Dewangan
Aged About 44 Years R/o Farsaguda, District- Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
2. Shyamlal (Deleted) Through Lrs As Per Honble Court Order
Dated 25-01-2021.
2.1 - (A) Smt. Budhni Bai Dewangan Wd/o Shyamlal Aged
About 70 Years.
2.2 (B) Prakash Dewangan (Died) Through LRs. As Per Honble
Court Order Dated 05-04-2021.
2.2(B)(I) Smt. Meera Dewangan W/o Late Shri Prakash
Dewangan Aged About 43 Years
2.2.(B)(Ii) Miss Divya Dewangan D/o Late Shri Prakash
Dewangan Aged About 21 Years
2.2.(B)(Iii) Miss Poonam Dewangan D/o Late Shri Prakash
Dewangan Aged About 19 Years
2.2.(B)(Iv) Rahul Dewangan S/o Late Shri Prakash Dewangan
Aged About 17 Years
all 2.2 (B)(i) to 2.2 (B)(iv) are R/o Mahatma Gandhi,
Ward No. 1, Kondagaon District Kondagaon
Chhattisgarh. Pin 494226., District : Kondagaon,
Chhattisgarh
2.3 - (C) Tej Kumar Dewangan S/o Late Shyamlal Aged About
40 Years r/o Mahatma Gandhi, Ward No. 1, Kondagaon
District Kondagaon Chhattisgarh. Pin 494226., District :
Kondagaon, Chhattisgarh
2.4 - (D) Smt. Radhika Dewangan W/o Munnulal Dewangan
Aged About 48 Years r/o. Sargipal Para, Kondagaon, Dist.
Kondagaon (CG).
Page 3 of 15
2.5 - (E) Smt. Malti Dewangan W/o Late Arun Dewangan Aged
About 46 Years r/o. Of Patraguda Ward, Jagdalpur,
Dist.Bastar (CG).
3. Premnath S/o Late Sonuram Dewangan Aged About 52 Years R/
o Arkachepra Para, Tahsil- Kondagaon, Distt. Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
4. Ganesh S/o Late Sonuram Dewangan Aged About 47 Years R/o
Arkachepra Para, Tahsil- Kondagaon, Distt. Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
5. Jagannath S/o Late Sonuram Dewangan Aged About 43 Years R/
o Arkachepra Para, Tahsil- Kondagaon, Distt. Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
6. Biharilal S/o Late Sonuram Dewangan Aged About 40 Years R/o
Arkachepra Para, Tahsil- Kondagaon, Distt. Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
7. Nandkishore S/o Late Sonuram Dewangan Aged About 37 Years
R/o Arkachepra Para, Tahsil- Kondagaon, Distt. Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
8. Ramchand S/o Late Budhram Dewangan Aged About 43 Years
R/o Arkachepra Para, Tahsil- Kondagaon, Distt. Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
9. State Of Chhattisgarh Through - Collector, Bastar
(Chhattisgarh), District : Bastar(Jagdalpur), Chhattisgarh
10. Ajay Kumar Dewangan S/o Late Shri Roopchand Aged About 44
Years R/o House Of Gokul Dewangan Dongripara Ward,
Kondagaon, District- Kondagaon (Chhattisgarh), District :
Kondagaon, Chhattisgarh
--- Respondents
-------------------------------------------------------------------------------------------
For Appellants : Mr. Prafull N. Bharat, Sr. Advocate
with Mr. Keshav Dewangan, Advocate.
For respondents : Mr. Manoj Paranjpe and Mr. Anurag
Singh, Advocates
For State : Mr. Ravi Pal Maheshwari, PL.
-------------------------------------------------------------------------------------------
Hon'ble Shri Justice Narendra Kumar Vyas
CAV JUDGMENT
1. The appellant/plaintif has fled the Second Appeal under Section
100 of the Code of Civil Procedure, 1908 being aggrieved by the
judgment and decree dated 21-09-2010 passed by learned
Additional District Judge (Fast Track Court), Kondagaon District
Bastar in Civil Appeal No. 7-A/2007 by which the judgment and
decree dated 8-8-2003 passed by the Additional Judge,
Kondagaon to the Court of Ist Civil Judge, Class-1, Jagdalpur in
Civil Suit No.30-A/97 has been set aside.
2. This second appeal has been admitted by this court on 15-09-
2020 on the following substantial questions of law:-
1. Whether the First Appellate Court was justifed in
holding that the suit property is the self acquired
property of deceased Sonu Ram and thereby
dismissing the suit of the plaintif by recording a
fnding, which is perverse to the record?
2. Whether the First Appellate Court was justifed in
holding that plaintiffs suit for declaration of title,
partition and possession is barred by limitation while
hearing and entertaining the plea of limitation for
the frst time before the First Appellate Court?
3. The brief facts as refected from the records are that the plaintif
has fled a civil suit before learned First Civil Judge, Class-I,
Kondagaon for declaration, partition and possession mainly
contending that the plaintif and defendants are members of one
family and genealogical tree of the family was also mentioned,
according to which Roopdhar who was grand-father of the
plaintif has fve sons namely Sonuram, Budhram, Laxman,
Asturam and Punauram. Budhram has two sons namely
Roopchand and Ramchand. Asturam has two sons namely
Jagdish and Umashankar. Punauram has one son namely Jugal
Kishore and Sonuram has seven sons namely Laxminath,
Shyamlal, Premnath, Ganesh, Jagannath, Biharilal, Nandkishore
and Ramchand. Grand-father of the plaintif was settled at
Bastar and his marriage was solemnized with Kunjbai at
Kondagaon. Grand-father of Roopdhar was running liquor shop.
Plaintif's uncle was the eldest member of the family and rest of
four brothers were minors, the age of Budhram was ten years,
Laxman was eight years, Asturam and Punauram were kids.
4. It has been pleaded that Roopdhar died in the year 1941- 1942
and after his death, Sonu Ram along with his four brothers and
his mother were living jointly doing agricultural work and
maintaining their family. It has also been contended that they
have also taken one contract for running liquor shop and in this
regard solvency certifcate was required, therefore, with the
money left behind by Roopdhar, with the fnancial assistance
provided by the maternal uncle of Sonu Ram and all the income
generated from work done by all the four brothers they have
purchased some agricultural land. Since Sonu Ram was elder
one in the family, therefore, the land was purchased in his name,
so that solvency certifcate can be obtained for running liquor
contract. Description of agricultural land has also been
mentioned in the plaint which comes to 14.60 acres of land.
Sonuram and plaintiffs father and uncle were jointly doing
agricultural work and earning from it, as such it is a joint family
property. Subsequently, in the year 1964 there was partition
between Sonu Ram and plaintiffs father and other uncles, after
partition, they were doing the agricultural work on their
respective shares. Plaintiffs father has received 1.70 acres of
land in which plaintif along with his father were doing
agricultural work, that land was not partitioned and it was
recorded in the name of late Sonu Ram in the revenue records.
5. It has been further pleaded that the plaintiffs father died in the
year 1988. After death of plaintiffs father, he was earning
livelihood from the land measuring about 1.70 acres of land.
Sonu Ram died in the year 1993, but during his lifetime, he has
never restricted plaintiffs father to earn from that property and
even after the death of Budhram Sonuram has never objected
the plaintif to earn from the said land. After death of Sonu Ram,
mutation proceeding was initiated between seven sons of Sonu
Ram and plaintif had also moved an application for mutation
which was rejected by the Tahsildar vide order dated 29-9-1995.
It has also been contented that in the name of lifetime of Sonu
Ram, Sonu Ram had moved an application for actual partition in
Kondagaon Panchayat in the year 1981 and at that time there
was a revenue case between Budhram and Sonu Ram. Late
Sonuram submitted his claim before the Kondagaon Pancahyat
that he will do the partition when the court proceedings will
come to an end and on his proposal plaintiffs father and uncle
have agreed and accordingly the court proceedings came to an
end. It has been further contended that the plaintiffs father
Budhram died in the year 1988. Sonu Ram has not done
partition before death of plaintiffs father as stated before
Kondagaon Panchayat. It has also been contended that in the
year 1989 Sonu Ram partitioned the land between his seven
sons and at that time the land measuring about 1.70 acres
which was in possession of plaintiffs father was demarcated by
the Patwari in presence of village Patel and Sonu Ram told that
name of plaintif be recorded in the revenue record and
thereafter also plaintif was in possession of the said land. Sonu
Ram and defendants No. 1 to 7 dispossessed the plaintif
forcefully by giving threats, adopting coercive steps from the
land measuring 1.70 acres. It has been further contended that
plaintif had 1/5th share in the suit property and he was
dispossessed from the said land in the year 1991, therefore,
cause of action continues and prayed for declaration that he be
declared as owner of 1/5th share of the suit property and after
partition, possession be delivered to him.
6. The defendants No. 1 to 7 have fled their return denying the
allegations made in the plaint mainly contending that it is
emphatically denied that the suit property has been purchased
by the joint family and in fact, suit property is self acquired
property of defendant No. 1 to 7fs father. It has also been denied
that any partition between plaintif and defendants was done. It
is also denied that the plaintiffs father was given 2.70 acres
land. It is specifcally denied that defendantfs father has told for
recording the name of the plaintif 1.70 acres land out of the suit
property. It has been specifcally pleaded that the suit property
has been purchased by Sonu Ram and he was in possession over
the said land till his lifetime and was doing the agricultural work.
It has also been specifcally contended that the defendants No.1
to 7 are in possession of the land since 30 years and this fact is
also known to the plaintif, therefore, the suit deserves to be
dismissed. It has also been contended that the suit is time
barred and prayed for dismissal of the suit. During pendency of
the suit, plaint was amended by denying the fact that the
defendants No. 1 to 7 are in possession of the suit land for the
last 30 years and the suit is barred by limitation.
7. On the pleadings of parties, learned trial court has framed ten
issues. Issue Nos 1, 2 and 3 are relevant, therefore, they are
being extracted below.
1. Whether the property as mentioned in para 5 of the
plain measuring 14.60 acres of land is purchased
from the income of the nucleus family?
2. Whether Sonu Ram being the elder in the joint family
member, has purchased the land measuring 14.60
acres of land in his name in 1964?
3. Whether the plaintif was entitled to get 1/5th share
of the suit property.
8. Plaintif to substantiate his pleadings has exhibited the
documents; order of revenue case as Ex.P/1, application fled
under Section 110 of the Land Revenue Code as Ex.P/2, order
sheet dated 28-10-1980 passed in revenue case as Ex.P/3,
Khasra Panchsala (P-ii) as Ex.P/4, Kistband Kathauni as Ex.P/5,
application under Sections 109 and 110 of the Land Revenue
Code as Ex.P/6. Revenue order sheet of the Collector as Ex.P/7
and Panch faisla No.1/1981 dated 4-4-1981 as Ex.P/8. Plaintif to
substantiate his case has examined himself as PW/1, Sukaluram
(PW/2) and Deveshwar Patel (PW/3). Defendant examined
Laxminath (DW/1) and Bodhanram (DW/2).
9. Plaintif in his examination-in-chief has reiterated the same stand
which has been taken in the plaint and this witness was
extensively cross examined by the defendants No.1 to 7 wherein
he has admitted that application submitted by father in the year
1979-80 has been rejected by the Tahsildar with their consent.
He has also admitted that subsequently his brother Ramchandra
has moved an application for mutation before the Tahsildar
which was also rejected. He has also stated that during lifetime
of Sonuram, he has heard that solvency is required for liquour
contract, but he has not received any solvency in the name of
Sonuram. The witness has also admitted that Akturam has given
two acres of land in his share to Ramchand, but the same has
also been snatched by the defendants. He has also admitted
that defendant No. 8 is his brother and still he survives. He has
also admitted that joint property was partitioned in which fve
brothers have been given Rs.2000/- cash but no share was given
to any brother in the join property which is suit property. He has
denied that the suit property is self acquired property of Sonu
Ram, therefore, it has not been partitioned. PW/2 Sukalauram
has also supported the case of plaintif. He has stated in his
cross examination that the defendants are doing agricultural
work in the disputed suit property. He has also stated that he is
not aware about panch faisla.
10. The other witness Dibeshwar Patel (PW/3) has examined by of
affidavit as provided under Order 18 Rule 4 of C.P.C. wherein
paragraph 8 he has stated that Sonu Ram in his life time
requested the Panchayat for actual partition in the year 1981
with regard to the property measuring about 14.60 acres of land
and at that time there was dispute between plaintif's father and
Sonu Ram before the Revenue Court. The deceased Sonu Ram
has requested before Panchayat that he will do the partition
when the revenue case will be closed. On this, plaintiffs father
and uncle have agreed to it and this proposal was also
mentioned in the Panchayat Register in which parties and
panchas have put their signatures. The original panchayat
register was also submitted before the trial court which was
exhibited as Ex.P/8. This witness was cross examination by the
defendants No. 1 to 7 wherein he has admitted that between
plaintif and defendants two cases were fled and both cases
have been dismissed by the trial court. This witness has further
stated that Sonu Ram has given an application in writing that he
will do the partition when the revenue case will be closed. It has
also been denied that Sonu Ram has not given any application
and whatever has been written in the register that will be
available, but the application is not available. This witness
further stated that out of 14.60 acres of land, Sonu Ram has
given some portion of land to his brothers, but it was not legal
partition. He has further stated that Budhram in his lifetime
earned from 1.70 acres of land and after his death, Sonuram has
forcefully taken the possession of the land. He has further
stated that after panch faisla, parties have not produced any
application whereas in panch faisla it has been written that they
will get partitioned by panchas.
11. The defendantfs witness Laxminath (DW/1) in examination-in-
chief has reiterated the stand which he has already taken in the
written Statement and contended that Sonu Ram was the eldest
member in the family and he has taken care of his four brothers
and the property is self acquired property. He has also stated
that the marriage of the plaintif and brothers of Sonu Ram was
performed by Sonuram and Sonu Ram purchased the suit
property by self acquired income. It has been further stated that
the suit property is self acquired property which Sonu Ram has
purchased within ffty years. The defendants are doing
agricultural work in the disputed suit property and they are in
possession of the suit property. It has been further stated that in
the suit property neither plaintif was in possession of the share
of the property nor has any right over the suit property. It is
emphatically denied that the defendantsf father has purchased
1.70 acres of land in the name of the plaintif. This witness was
extensively cross-examined by the plaintif wherein he has
stated that when Roopdhar who was grand-father of plaintif
died, Sonu Ram was major and his all four brothers were minors
and they are doing labour work and they have purchased the
property by doing labour work and one contract of liquor shop
was also taken by Sonu Ram. It has been specifcally denied that
the land which is purchased, was purchased by the head of the
family. It has been further denied that Sonu Ram has purchased
the suit property. It is further stated that Tugudi Bai who is
grand-mother was not living with her fve sons as she was done
remarriage and living with two sons Budhram and Laxminath.
Before marriage Sonu Ram had purchased the suit property. It is
emphatically denied that Sonu Ram, and his brothers were
earning from property jointly. In fact, Sonu Ram has purchased
the property in the name of his brother separately and house
has also been constructed in the suit property and his marriage
was also performed by him. It is further stated that Budhram
and Sonu Ram and all his brothers were residing in the house
which has been constructed by Sonu Ram and after death of
Budhram, Roopchand is residing and also after death of
Akturam, Jagdish and Umashankar were also residing in the
house. He has stated that in the partition Budhram was not
given 1.70 acres of land. It has been emphatically denied that in
the suit property measuring 1.70 acres of land Budhram was
earning his livelihood. He has denied that at the time of partition
Sonu Ram stated that the land which is in possession of
Roopchand measuring 1.70 acres of land will be recorded in the
name of Roopchand. It is emphatically denied that after dearth
of Sonu Ram, defendants have forcefully taken 1.70 acres of
land and dispossessed the plaintif.
12. Bodhan Ram (DW/2) was cross examined by the plaintif.
wherein he has stated that prior to 40 years, Sonu Ram was
having seven acres of land and in the rest of the land, brothers
of Sonu Ram were living separately and earning. Sonu Ram has
already kept the land for himself.
13. Learned trial court after appreciating the evidence, material on
record vide its judgment and decree dated 08.08.2003 has
allowed the suit by recording a fnding that it is the joint family
property and as per prevailing custom, the property is purchased
by Sonu Ram being elder brother in the family, therefore,
plaintif's father Budhram had 1/5th share in the suit property.
The same right also accrues to the son of Budhram namely
Roopchand, therefore, the plaintif is entitled to get 1/5th share
of the suit property along with his brother Ramchand. Being
aggrieved with the judgment and decree passed by learned trial
Court, defendants No. 1 to 7 have preferred First Appeal before
the learned Second Additional District Judge, Bastar which was
registered as Civil Appeal No. 7-A of 2007.
14. The First Appellate Court after appreciating the evidence has
recorded a fnding that the judgment and decree passed by the
trial court sufers from illegality as the suit is barred by limitation
as plaintiffs father Budhram after judgment dated 28-10-1980
(Ex.P/3) should have fled the application for declaration,
partition and possession and he has not done in right time. He
has fled the suit on 26-9-1997 which is barred by limitation and
the same has been fled after 17 years of the order passed by
the Revenue Court, therefore, the suit is barred by limitation and
accordingly set aside the judgment and decree passed by the
learned trial Court. Being aggrieved by the said judgment and
decree passed by the trial court, the plaintif has preferred the
second appeal which has been admitted by this Court on the
substantial question of law as mentioned in foregoing paragraph.
15. Mr. Prafull Bharat, learned Sr. Advocate assisted by Mr. Keshav
Dewangan, counsel for the appellants would submit that the
plaintif has already taken plea with regard to purchase of suit
property by joint property which was supported by the evidence
of PW1 Roopchand and PW/3 Dibeshwar Patel and DW/1
Laxminath as this witness also in his cross examination admitted
that all the brothers are doing labour work and from the funds so
generated they have purchased the suit property. Similarly, he
referred to the evidence of DW/2 Bodhanram who has also
admitted that all the brothers are doing the labour work and
from the funds so generated, they have purchased the suit
property. He has admitted in para 2 of cross examination that
Sonu Ram was cultivating in only 7 acres of land and the
remaining land was in cultivating possession of his other
brothers. To buttress his arguments, he has relied upon the
judgment of Honfble Supreme Court in the case of Adiveppa vs.
Bhimappa and another1 and V.KL. Surendra vs. V.K.
Thimmaiah2 and would submit that the First Appellate Court
had committed an error in disturbing the well reasoned order
1 AIR 2017 SC 4465
2 (2013) 10 SCC 211
passed by the trial court. With regard to substantial question No.
2, he would submit that the learned trial Court erred in holding
that the suit is barred by limitation whereas the learned Fist
Appellate Court in para 11 of its judgment has held that in terms
of the document dated 4-4-1981 Ex.P/8 it is evident that the
plaintif was dispossessed in the year 1981, therefore, the suit is
barred by limitation. While holding so the lower Appellate Court
failed to consider that the defendant has not raised any such
plea in his written statement, therefore, decision on a issue
which was never pleaded is bad in law, therefore, the substantial
questions of law be answered in favour of the appellant and the
appeal be allowed.
16. On the other hand, learned counsel for the
respondents/defendants would submit that the fnding recorded
by the learned First Appellate Court is legal and justifed and
does not warrant any interference by this court. He would submit
that the plaintif is unable to point out that the learned First
Appellate Court has erred in recording a fnding that the suit
property is not a joint property, therefore, the substantial
question of law framed by this Court on 15.09.2020 deserves to
be answered in negative against the appellant and the appeal
deserves to be dismissed by this Court. To strengthen his
submission, he has placed reliance in the case of Karan Lal Vs.
State of Chhattisgarh and others3, Jagdishdas vs.
Tuleshwardas and others4 and Laxmi Narayan Sahu vs.
Dhelabai and others5.
17. I have heard learned counsel for the parties and perused the
record with utmost satisfaction.
18. From bare perusal of the plaint averments, it is quite vivid that
the plaintif has fled a civil suit claiming that suit property is
purchased from nucleus of joint family property, therefore, it is
incumbent upon the plaintif to plead and prove the source of
income to purchase the suit property and whether the evidence
3 2022 Law Suit (Chh) 126
4 2022 Law Suit (Chh 156)
5 2022 SCC Online Chh 465
placed on record by the plaintif would amount to proving of the
facts, have to be examined by this Court.
19. The main ground taken by the plaintif to substantiate suit
property is joint family property is for running the liquor
contract, a solvency certifcate is required, which has been
prepared from the property of joint family and the said joint
family property has been generated from the nucleus of the
family, money left by grandfather and agricultural work
performed by the plaintiffs father and all the uncles including
Sonu Ram, but in the cross-examination, the plaintif witness has
categorically stated that he has not seen the solvency which
have been prepared in the name of Sonu Ram. The witness has
also not placed any record what are the money left by the
grandfather and what are the earnings from agriculture work to
generate the nucleus of the joint Hindu Family for purchase of
suit property . No such specifc evidence was produced only bald
statement was made, as such, from bare perusal of the evidence
of the plaintif, it is quite vivid that there is no material to show
that the property is nucleus of joint Hindu Family or that it was
purchased through funds coming out of this nucleus, as such, it
cannot be said that it is joint Hindu Family property as held by
Honfble Supreme Court in Bhagwat Sharan Vs. Purshottam
and others [2020 (6) SCC 387]. The learned First Appellate
Court has also recorded a fnding that the plaintif has not
produced any evidence to demonstrate that as per custom the
property was purchased in the name of elder son. The law has
been well settled that custom has to be proved in accordance
with law. The plaintif has not made any attempt for proving the
said custom that the property is being purchased in the name of
elder son. Thus, the substantial question of law No. 1 framed by
this Court is answered against the plaintif and in favour of
defendants.
20. Further ground taken by the plaintif that at the time of partition
of property by Sonu Ram between his seven sons, in the year
1989, he has told that Sonu Ram will record 1.70 acres land in
the name of plaintif, was only hearsay evidence. The said
alleged assurance does not confer any right to the plaintif. The
learned First Appellate Court after appreciating the evidence
with regard to issue No.1 to 7, has held that the plaintif is
unable to prove that the suit property is joint property and being
elder member in the family property has been purchased in the
name of Sonu Ram. The First Appellate Court has also recorded
a fnding that as per partition in the year 1964, 1.70 acres of
land was given to Budhram. He was unable to prove that Sonu
Ramfs sons have dispossessed the plaintif in the year 1991 from
1.70 acres of land, then only the cause of action arose for fling
of the suit in the year 1991. The learned First Appellate Court
while examining the Ex.P/8 has also given a fnding that
Budhram was dispossessed from the suit property on 4-4-1981,
therefore, on the basis of fnding that the plaintif was in
possession of the suit property upto 1991, is found to be
erroneous. This fnding is legal, justify and does not all for any
interference.
21. The learned First Appellate Court has also recorded a fnding that
the suit is barred by limitation and to negative this fnding,
submission of learned Senior Advocate for the appellant that no
such pleading has been taken in written statement, therefore,
learned First Appellate court has committed illegality and the
substantial question of law No. 2 framed by this Court, deserves
to be answered in his favour, is being considered .
22. From bare perusal of the written statement fled by defendants
No. 1 to 7, it is quite vivid that in special pleading, the
defendants have taken a plea that the suit is barred by
limitation, which has been examined by the Appellate Court,
therefore, the substantial question of law framed by this Court,
deserves to be answered in negative and it is held that the suit
is barred by limitation. It is pertinent to mention here that in
view of specifc pleadings made by the defendants with regard
to the limitation, the plaintif has also amended the pleading
denying the averment regarding limitation. The learned trial
Court on pleadings of the parties has framed issue No. 9 with
regard to limitation and while deciding the issue No. 9, has
recorded a fnding that since the suit property is joint family
property and every member of the family can claim a share as
and when requires, therefore, the suit was held to be in
limitation. The fnding recorded by the learned trial Court that
the suit property is joint family property, therefore, it has been
set aside by the learned First Appellate Court after appreciating
the evidence and thereafter it has recorded that the suit is
barred by limitation, therefore, the fnding recorded by the
learned First Appellate Court that the suit is barred by limitation
is legal and justify. Accordingly, substantial question of law No.
2 framed by this Court deserves to be answered in negative as
the defendants from the very beginning have raised the plea of
limitation, which has been adjudicated by the trial Court and the
First Appellate Court while appreciating the evidence and the
material placed on record has held that the suit is barred by
limitation.
23. Considering the facts and circumstances of the case, there is no
perversity or illegality in the order, the substantial question of
law framed by this Court is answered against the plaintif and
the instant Second Appeal deserves to be dismissed and
accordingly it is dismissed.
24. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
