Bhago Ram And Others vs Tara Bai And Others
2022 Latest Caselaw 6234 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR


                                 First Appeal No.86 of 2006

                          Judgment Reserved on :               26.7.2022
                          Judgment Delivered on :             13.10.2022

    1.   Bhago Ram, S/o Bhatalu, aged 32 years, occupation cultivation,
    2.   Ram Nivas, S/o Bhatalu, aged 29 years, occupation cultivation,
    3.   Ramadhar, S/o Bhatalu, aged 25 years, occupation cultivation,
    4.   Ram Prasad, S/o Maya Ram, aged 45 years, occupation cultivation,
    5.   Gendlal, S/o Bahadur, aged about 42 years,
    6.   Hemlal, S/o Bahadur, aged about 29 years,
    7.   Khem Raj, S/o Bahadur Sahu, aged about 32 years,
    8.   Teej Ram, S/o Bahadur Sahu, aged about 28 years,
    9.   Panch Ram, S/o Bahadur Sahu, aged about 28 years,
         All R/o Village Lendhra Chote, Tahsil Sarangarh, District Raigarh,
         Chhattisgarh
                                                                 ---- Appellants
                                    versus

    1. Tara Bai, W/o Samund Lal (Original Plaintiff Since Deceased) LRs:
       (i)    Lakhan Bai, D/o Late Samund Ram Kevant, aged 16 years,
       (ii)   Badku, S/o Late Samund Ram Kevant, aged 10 years,
       (iii)  Ghotku, S/o Late Samund Ram Kevant, aged 10 years,
              All Minors Through Next Friend Ghasiya, S/o Jageswar Kevant,
              Village Lendhra Chhote, P.O. Lendhra Chhote, Tahsil
              Sarangarh, District Raigarh, Chhattisgarh
    2. Panchu, S/o Munu Kevant (Since Deceased) LR:
       (i)    Sundari, Wd/o Panchu, aged about 45 years, occupation
              cultivation, R/o Chorbhatti, Tahsil Sarseewa, District Raipur
    3. Jageswar, S/o Dular Singh (Since Deceased) LR:
       (i)    Ghasiya, S/o Jageswar, occupation cultivation, R/o Village
              Lendhra, Tahsil Sarangarh, District Raigarh
    4. State of Chhattisgarh through Collector Raigarh, Chhattisgarh
                                                                                 --- Respondents

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For Appellants                              :        Shri S.N. Nande, Advocate
For Respondent No.3(i)                      :        Shri Udho Ram Koshaley, Advocate
For Respondent No.4                         :        Ms. Ishwari Ghritlahare, Panel Lawyer
For Other Respondents                       :        None

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. The instant appeal has been preferred by defendants 2 to 10

against the judgment and decree dated 6.2.2006 passed by 2 nd

Additional District Judge, Raigarh in Civil Suit No.6A of 2006,

whereby the plaintiff's suit has been partly decreed.

2. During pendency of the suit itself, original plaintiff Tarabai and

original defendant 1 Panchu died. Present plaintiffs 1 to 3

Lakhanbai, Badku and Ghotku are legal heirs of original plaintiff

Tarabai and present defendant 1 Sundari is legal heir of original

defendant 1 Panchu.

3. Facts of the case, in short, are that original plaintiff Tarabai

instituted a declaratory suit, being Civil Suit No.6A of 2006 against

the defendants seeking declaratory relief to the effect that the sale

deeds dated 28.2.1995 and 15.3.1995 executed by original

defendant 1 Panchu in respect of the lands as shown in Schedules

A, B and C appended with the plaint be declared void. The original

plaintiff consequently sought further declaration to the effect that

the purchasers/defendants 2 to 10 did not have obtained any right

over the lands. She further sought restoration of possession over

the lands as shown in Schedules A, B and C.

4. According to the pleadings of the plaintiff, there was a joint khata in

the names of Sukhru and his brothers Jageswar and Mani holding

lands ad-measuring 6 acres at Village Lendhra, Tahsil Sarangarh,

District Raigarh. On mutual family settlement Sukhru obtained a

share of 3 acres as his brother Mani died issueless. Though Sukhru

and Jageswar were in possession of their respective shares, the

khata remained joint. According to the family tree, Sonkunwar was

wife of Sukhru and they have 3 daughters, namely, Khikmati,

Samarin and Amarin. According to the pleadings of original plaintiff

Tarabai, she is the daughter of Khikmati. It was further pleaded in

the plaint that on the death of Sukhru, name of Samarin was left to

be mutated in the revenue record, but, the same was later on

corrected vide Sanshodhan Panji No.84 by order dated 25.8.1959.

After the death of Sukhru, Sonkunwar and Jageswar got their khata

separated vide Sanshodhan Panji No.463 and 464 by order dated

27.2.1973. Sonkunwar died leaving behind her grand daughter,

namely, Tarabai (original plaintiff). As other sisters of mother of

Tarabai, namely, Samarin and Amarin died issueless, therefore,

Tarabai is the only heir of Sukhru. On her back, playing mischief,

original defendant 1 Panchu got his name illegally recorded in the

revenue records and sold the lands shown in Schedule A to

defendants 2 to 4 vide registered sale deed dated 28.2.1995. He

further sold the land shown in Schedule B to defendant 5 on

15.3.1995 and further sold the lands shown in Schedule C to

defendants 6 to 9 on 28.2.1995. Thus, claiming the relief as

mentioned earlier, original plaintiff Tarabai filed the civil suit.

5. The present Appellants, being defendants 2 to 10 filed their joint

written statement denying the claim of the plaintiff. It was pleaded

by them that the plaintiff is not the real grand daughter of Sukhru

and she, by wrongly introducing herself as a successor of Sukhru,

filed the false suit. It was pleaded by them that Sukhru died in the

year 1959-60 and in accordance with the prevalent law his widow

Sonkunwar succeeded her husband. Daughter of Sukhru, namely,

Khikmati was married in Village Bardula and out of her wedlock

only 2 female children, namely, Paharbai and Isubai were born.

Plaintiff Tarabai born through earlier married wife of husband of

Khikmati and, therefore, Tarabai is step daughter of Khikmati.

Defendant 1 Panchu married Sukhru's daughter Samarin and lived

with her in her paternal home as ghar jamai. At the time of

marriage, some of the land of the share of Sukhru had been given

to defendant 1 Panchu as a dowry. It was further pleaded that on

the death of Sukhru name of his widow alone was recorded in the

revenue records. The khata was jointly recorded in the names of

Sonkunwar and Jageswar. The land bearing Survey No.1060 and

1065, part of land ad-measuring 0.87 acres was sold to Samarin

and her husband Panchu vide registered sale deed executed in the

month of April, 1961 jointly by Jageswar and Sonkunwar.

Thereafter, the joint khata was separated by Sanshodhan Panji

No.463 and 464. It was further pleaded by them that the land

mentioned in Schedule B was purchased by Panchu and Samarin

through a registered sale deed dated 12.8.1977. Later on this land

has been sold by Panchu to defendant 5 Ramprasad. The land

bearing Khasra No.1068 and 1164 total 0.87 acres has been

purchased by Panchu and Samarin from Sonkunwar and Jageswar

through a registered sale deed dated 11.4.1967, which has been

sold by Panchu to defendants 2 to 4 and defendants 6 to 10

through registered sale deed dated 28.2.1995. The remaining suit

land has been obtained by Panchu at the time of his marriage as a

dowry. Therefore, he was owner of the remaining land. Hence, he

has full right to sell those lands also. It was further pleaded by

defendants 2 to 10 that on an earlier occasion, defendant 11

Jageswar had brought a declaratory suit against defendants 2 to 10

in relation to the subject matter of this suit, which was registered as

Civil Suit No.62A of 1995 and was dismissed by the judgment

dated 9.8.1996. An appeal was preferred against the said

judgment. Apart from the all such factual pleadings, some legal

objections pertaining to mis-joinder of cause of action, valuation of

suit, tenability of suit, limitation, cause of action etc. have been

raised in the joint written statement of defendants 2 to 10. A

separate written statement has been filed by Ghasia, the legal heir

of defendant 11 Jageswar. Ghasia supported the entire case of

original plaintiff Tarabai. A separate written statement has been

filed by defendant 12/State of Madhya Pradesh (now Chhattisgarh).

Sundari, the legal heir of defendant 1 Panchu, after service of

summons, did not appear before the Trial Court and was declared

ex parte.

6. On the basis of the pleadings, the Trial Court framed as many as 5

issues. After recording evidence of the parties and hearing

arguments, vide judgment dated 6.2.2006, the Trial Court partly

decreed the suit. Hence, the instant appeal by defendants 2 to 10.

7. Learned Counsel appearing for the Appellants/defendants 2 to 10

submitted that the Trial Court only on the basis of evidence of DW1

Khemram arrived at the conclusion that original plaintiff Tarabai

was the daughter of Khikmati, which is not in accordance with the

evidence available on record. The Trial Court did not consider the

evidence of DW2 Bijo on this point at all, who has categorically

stated that Tarabai was step daughter of Khikmati. The Trial Court

also did not even appreciate the law of evidence shifting onus to

prove a fact on the party. Since original plaintiff Tarabai had

claimed herself to be a grand daughter of Sukhru, the onus is prima

facie on her to establish this fact. From the evidence available on

record, it is well established that Tarabai was not the original

daughter of Khikmati. Rather, she was step daughter of Khikmati

and, therefore, she has no right over the lands of Sukhru. It was

further submitted by Learned Counsel that from the evidence on

record it is also established that defendant 1 Panchu was for more

than 12 years recorded as land owner and was in possession of the

suit land for more than 12 years. After the death of Sukhru and

Sonkunwar, no claim was made over the suit land by plaintiff

Tarabai. The Appellants/defendants 2 to 10 are bona fide

purchasers of the suit land and are in peaceful possession of the

suit land from the date of the purchase. Therefore, the finding

recorded by the Trial Court is not sustainable.

8. Learned Counsel appearing for Respondent 3(i) and Respondent 4

opposed the arguments raised on behalf of the Appellants and

supported the impugned judgment passed by the Trial Court.

9. I have heard Learned Counsel appearing for the parties and

perused the entire evidence both oral and documentary adduced by

the parties before the Trial Court.

10. It is not in dispute that Dular had 3 sons, namely, Sukhru, Jageswar

(defendant 11) and Mani. Sukhru died in the year 1951.

Sonkunwar was wife of Sukhru. It is also not in dispute that Sukhru

and Sonkunwar had 3 daughters, namely, Khikmati, Samarin and

Amarin. Original defendant 1 Panchu was husband of Samarin and

they died issueless. Amarin also died issueless. According to the

pleadings of original plaintiff Tarabai, she was the only daughter of

Khikmati. Therefore, on this ground only, she made a claim over

the suit land. According to the pleadings of the

Appellants/defendants 2 to 10, Khikmati had only 2 daughters,

namely, Paharbai and Isubai. As per the pleadings of defendants 2

to 10, original plaintiff Tarabai is step daughter of Khikmati. The

Trial Court only relying on the statement of DW1 Khemram arrived

at the conclusion that Tarabai is original daughter of Khikmati.

11. DW1 Khemram, in his cross-examination in paragraphs 15, 26 and

29, deposed that he does not know anything about Tarabai, he also

does not know whether Tarabai is daughter of Khikmati or not and

he also does not know when Tarabai took birth. He further

admitted that at the time of his birth, Tarabai had already taken

birth. Only on the basis of this statement, the Trial Court arrived at

the conclusion that the defendants are not able to prove the fact

that Tarabai was the step daughter of Khikmati and arrived at the

conclusion that Tarabai was the real daughter of Khikmati. From

perusal of the impugned judgment of the Trial Court, it appears that

the Trial Court did not consider the evidence of DW2 Bijo at all, who

was a resident of Village Pasit and has categorically deposed that

Tarabai was the daughter of first wife of Ghasiram, namely,

Dhodhmihin. At the time of birth of Tarabai, Dhodhmihin had died.

When Tarabai was aged about 1½ years, at that time, Ghasiram

married Khikmati and out of their wedlock 2 daughters Paharbai

and Isubai took birth and later on these 2 daughters also died. The

above statement of DW2 Bijo has not been duly rebutted during his

cross-examination. Rather, in paragraph 7 of cross-examination of

this witness, a suggestion was made to him and he has stated that

when Tarabai was aged about 1½ years, at that time, Ghasiram

had married Khikmati and brought her home. Meaning thereby, it

has been accepted by the plaintiffs that Tarabai was step daughter

of Khikmati. But, this has not been considered by the Trial Court at

all.

12. Further, according to the pleadings of the plaintiff and the statement

made by plaintiff witness No.1 Ghasia, Khikmati had only 1

daughter, namely, Tarabai. Contrary to this, as per the pleadings of

the Appellants/defendants 2 to 10 and the statements made by

defendants witnesses No.1 and 2, namely, Khemram and Bijo,

respectively, Khikmati had only 2 daughters, namely, Paharbai and

Isubai and they have also died. In paragraph 7 of cross-

examination of DW2 Bijo, existence of Isubai and Paharbai has

also been admitted by the plaintiffs. Jageswar, original defendant

11 of the instant civil suit (father of the plaintiff witness No.1

Ghasia) had earlier filed a suit, being Civil Suit No.62A of 1995

before the Civil Judge Class II, Sarangarh. From perusal of the

judgment dated 9.8.1996 (Ex.D12) passed in that suit, it appears

that Jageswar filed the suit on the ground that at the time of death

of Sonkunwar she had no Class-I successor and being a brother of

Sukhru he only had full title over the whole property of Sukhru.

Against the judgment dated 9.8.1996, an appeal was moved before

the Appellate Court. From perusal of the judgment dated 17.4.2003

(Ex.D13) passed by the Appellate Court, it also appears that the

Appellate Court arrived at the conclusion that Khikmati had 3

daughters, namely, Tarabai, Paharbai and Isubai, which had not

been arrayed as party in that civil suit. Thus, it is also established

that Khikmati had 3 daughters, namely, Tarabai, Paharbai and

Isubai. Considering this fact, the instant civil suit was filed by

Tarabai claiming herself to be only daughter of Khikmati. From the

statement of DW2 Bijo, it is also established that Tarabai is not the

real daughter of Khikmati. Rather, Tarabai was born out of the

wedlock of Ghasiram and Dhodhmihin. Therefore, Tarabai does

not have any right over the property of Sukhru and Sonkunwar.

Thus, the finding of the Trial Court in this regard is perverse and is

not in accordance with the evidence available on record.

13. Resultantly, the appeal is allowed. The impugned judgment and

decree passed by the Trial Court is set aside.

14. A decree be drawn up accordingly.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal