Chattisgarh High Court
Raju Sahu vs Manrakhan Yadav (Died) Through ... on 5 September, 2022
1
FA No.89 of 2014
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No.89 of 2014
{Arising out of judgment and decree dated 31-3-2014 passed by the
Sixth Additional District Judge, Durg, in civil suit No.42-A/2013}
1. Raju Sahu S/o Shri Bihari Lal Sahu Aged About 31 Years R/o
Village Chandkhuri, P.H.No. 29, Tahsil & Distt. Durg, CG.
2. Smt. Jayanti Bai W/o Late Kanhai Yadav Aged About 40 Years
3. Bal Mukund S/o Late Kanhai Yadav Aged About 40 Years
4. Surendra S/o Late Kanhai Yadav Aged About 37 Years
All R/o Village Chandkhuri, Tahsil & Distt. Durg Chhattisgarh
---- Appellants
Versus
1. Manrakhan Yadav (Dead) Through Legal Heirs :
(A) Ramkumar S/o Late Manrakhan Yadav Aged About 50 Years
(B) Krishna Kumar S/o Late Manrakhan Yadav Aged About 40
Years
(C) Draupadi Bai D/o Late Manrakhan Yadav, W/o Baldev Yadav
Aged About 45 Years
(D) Rahi Bai W/o Late Manrakhan Yadav Aged About 70 Years
All R/o Village Chandkhuri, Tahsil And District Durg CG.
2. Sunderlal Yadav (Dead)
3. State Of Chhattisgarh Through Collector, Durg, Tahsil And
District Durg Chhattisgarh.
---- Respondents
For Appellants Ms Sharmila Singhai, Sr. Advocate with
Mr. P.R. Patankar & Mr. Kawal Jeet
Singh Saini, Advocate
For Respondent Mr. B.P. Sharma, Advocate with Mr.
No.1(a) to 1(d) Nitesh Jain, Advocate
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FA No.89 of 2014
For Respondent/State Mr. Avinash Singh, Panel Lawyer
For Applicant Mr. Anand Dadariya, Advocate
(Arun Kumar Beri)
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
05-09-2022
1. Challenge in this appeal is to the judgment and decree dated
31-3-2014 passed by the Sixth Additional District Judge, Durg, in
civil suit No.42-A/2013 whereby the suit filed by Manrakhan
Yadav (since deceased) and Sunderlal Yadav (since deceased) was
decreed and the sale deed dated 3-7-2010 is declared as null and
void and the order of permanent injunction was passed against the
legal heirs of original defendant Kanhai Yadav (since deceased).
The instant appeal is by the subsequent purchaser Raju Sahu and
the legal heirs of Kanhai Yadav, who was defendant No.1, in the
suit.
2. Perusal of the plaint would show that initially the suit was brought
by Manrakhan and Sunderlal against their brother Kanhai and the
purchaser of the property namely; Raju Sahu. The subject issue
pertains to khasra No.411/31. The said khasra was subsequently
renumbered as 411/49 and lastly as 483/1. The said property is
situated at village Chandkhuri, PH No.80, Tahsil & District Durg.
During pendency of this appeal Manrakhan and Sunderlal died.
Name of Sunderlal was deleted, since no legal representatives exist,
FA No.89 of 2014
however, in respect of Manrakhan his legal representatives were
brought on record. During pendency of the suit, the defendant
Kanhai also died, therefore, his legal heirs were substituted.
3. As per the plaint averments, the original plaintiffs Manrakhan and
Sunderlal as also the original defendant No.1 Kanhai are the real
brothers and they were holding the joint property at village
Chandkhuri, PH No.80, Tahsil & District Durg. According to the
plaintiffs, a registered partition deed was executed on 9-5-1972
between the parties whereby different properties were partitioned
between the brothers. The plaintiff contended that though the
partition deed was executed, yet the respective partition of holdings
(बटांकन) was not carried out. It is alleged that one of the brother
namely; late Kanhai taking advantage of it, sold the properties
beyond the share which befallen to his share. Here the subject issue
only pertains to khasra No.411/31 (old number) 483/1 (new
number). It was further stated that though the different properties
were sold by Kanhai in the years 1972, 1973 and 1974 but again he
executed the sale deed in respect of part of property comprised in
khasra No.411/31 (old number) 483/1 (new number) in favour of
Raju Sahu (appellant No.1 herein), therefore, the suit was filed on
the ground that the properties sold to Raju in the year 2010 in
excess of the share held by Kanhai be declared null and void and
the plaintiffs be declared absolute owners to hold the property
without intervention of the third party and permanent injunction
was sought for.
FA No.89 of 2014
4. The defendant in its reply denied to have executed the partition
deed dated 9-5-1972. It was stated that though certain signatures
were obtained on the said partition deed but actual division of share
and holding (बटांकन) was never carried out and the rin pustika (ऋण
पु सससका) and other revenue documents were continued in the joint
name. It was further stated that an oral partition was effected
among the brothers according to their holding and the defendant
Kanhai has sold the property only to the extent which befallen to his
share and not in excess. It was further stated that after partition
respective parties were in possession and enjoyment of the subject
suit properties. Thus, the suit filed by the plaintiffs be dismissed.
5. The subsequent purchaser Raju Sahu contended that the land in
question was recorded in the name of Kanhai since 1975 and since
his name was recorded in respect of the suit land, the same was
purchased and the sale deed was executed and claimed for dismissal
of the suit.
6. Learned trial Court after evaluating the facts and evidence decreed
the suit in favour of the original plaintiffs Manrakhan and
Sunderlal. Hence, this appeal by the subsequent purchaser Raju and
the legal heirs of Kanhai.
7. Ms Sharmila Singhai, learned senior counsel appearing for the
appellants, assisted by Mr. P.R. Patankar & Mr. Kawal Jeet Singh
Saini, Advocates, would submit that the trial Court has passed the
impugned judgment and decree only on presumption. Learned
FA No.89 of 2014
senior counsel would further submit that there is no evidence on
record to show that the properties, which were sold to Raju Sahu,
did not belong to Kanhai. She would also submit that in earlier sale
deeds, which were executed vide Ex.P/5, P/6 & P/7 in respect of
part of property of khasra No.411/31 (new number 483/1), it has not
been ascertained to whose share it has fallen. She would submit
that since the properties were in hold of deceased Kanhai with the
consent of other bothers the suit property was sold by projecting
Kanhai as seller. She would next submit that in any case the subject
sale of properties was made way back in the year 1972, 1973 and
1974 and the present suit was filed in the month of September, 2010
was barred by time, as such, taking advantage of this fact when the
property of Kanhai himself was sold in 2010 suit was filed when the
identity of properties was not clear. According to the learned senior
counsel, the trial Court completely misdirected itself without any
evidence on record to hold that the property sold to Raju Sahu was
part of property of other brothers Kanhai.
8. Mr. B.P. Sharma, learned counsel appearing for the respondents
No.1(a) to 1(d) along with Mr. Nitesh Jain, Advocate, per contra,
would submit that the trial Court has appreciated the entire facts
and evidence to hold that though one of the brothers Kanhai got the
property to the extent of two acres but the sale was made beyond
the share of the defendant Kanhai, which he got by partition. He
would further submit that categorical pleading was made by the
plaintiffs that though the partition was effected, yet the holdings
FA No.89 of 2014
were not shown to be divided on the revenue record, therefore,
taking advantage of it one of the brothers Kanhai sold the property
over and above his share in excess of his right. Therefore, in any
case subsequent sale made by Kanhai would be beyond his share
and this aspect has been considered by the learned trial Court by
calculating the extent of land befallen to the share of the parties. He
would also submit that in any case, the excess land sold over and
above ownership cannot be legalised consequently. Thus, the
impugned judgment and decree passed by the trial Court is well
merited on the principles of preponderance and the same do not call
for any interference.
9. We have heard learned counsel for the parties, perused the record
and evidence.
10. Before this Court an application (I.A.No.6 of 2022) is filed by one
Arun Kumar Beri under Order 1 Rule 10 of the Code of Civil
Procedure, 1908 (CPC) to implead him as a party on the ground that
he is the subsequent purchaser of the part of the suit land.
According to him, Kanhai sold the part of land to Raju Sahu and the
legal heirs of Kanhai subsequently sold the remaining part of land
to one Manisha Chandrakar, from whom the applicant Arun Kumar
Beri purchased the said land and is an interested party, whose right
would be affected by order of Court.
11. In order to appreciate the fact and the finding of the Court below,
the initial partition deed (Ex.P/1), which is the genesis of severance
FA No.89 of 2014
of the right is perused. The learned Court below has held that the
partition was effected, despite denial by the defendant Kanhai. This
finding is not under any challenge.
12. Having considered the fact that partition is a registered deed and in
absence of any evidence on record to show that it was an outcome
of fraud, the execution of partition cannot be denied. Perusal of the
partition deed would show that Manrakhan & Sunderlal were
described as Party No.1 and Kanhai on the other hand was shown as
Party No.2. Pursuant to the partition, copy of revenue record would
show the partition details. The same are reproduced below for
ready reference :
eujk[ku iape [email protected] [email protected]
lqUnjyky iape [email protected] [email protected]
lkfdu pUn[kqjh [email protected] Vq- [email protected]
Hkwfe Lokeh [email protected] Vq- [email protected]
[email protected] d [email protected]
379 Vq- 2-61
6 12-93
dUgbZ iape 371 [email protected]
lkfdu pUn[kqjh [email protected] Vq- [email protected]
Hkwfe Lokeh [email protected] Vq- [email protected]
[email protected] Vq- [email protected]
4 [email protected]
13. Prima facie the document would show that the joint holding was
separated among three brothers wherein Manrakhan & Sunderlal
FA No.89 of 2014
got the area admeasuring about 12.93 acres and Kanhai got 5.27
acres.
14. The dispute in this case pertains to khasra No.411/31. Perusal of
the partition deed would show that Manrakhan & Sunderlal got an
area of around 4.72 acres (1.910 hectare) of khasra No.411/31 and
Kanhai got an area of 2.0 acres (0.810 hectare). The sale deed,
which is marked as Ex.P/5, would show that the sale was made by
Kanhai to one Bihari, S/o Kawar Singh in respect of khasra
No.411/31 admeasuring 1.50 acres (0.608 hectare) on 30-5-1974.
Another sale deed (Ex.P/6) was executed on 16-2-1973 by Kanhai
in favour of Raghunandan, S/o Itwari Yadav, in respect of khasra
No.411/31 area of 0.50 acre (0.202 hectare). Subsequent sale deed
(Ex.P/7) executed by Kanhai in favour of Charjit Singh, S/o Ravil
Singh on 15-11-1972 with regard to khasra No.411/31 admeasuring
1.00 acre (0.405 hectare). The other sale deeds have also been
placed on record i.e. Ex.P/8 (khasra No.371 & 373) and Ex.P/9
(khasra No.371), which would not be relevant to decide the dispute.
15. Since we are concerned with khasra No.411/31, which was
subsequently renumbered as khasra No.411/49 and lastly as 483/1
and the area thereof, we confine our deliberation to the particular
khasra.
16. Three (03) sale deeds were executed in the years 1972, 1973 and
1974 in respect of khasra No.411/31, the old number part thereof. If
the area is calculated in hectares, it comes to 1.215 hectare, which is
FA No.89 of 2014
equal to about 03 acres. The partition deed (Ex.P/1) would show
that the property which fell to the share of Kanhai was about 02
acres, therefore, between 1972 and 1974, Kanhai has executed the
sale deeds in respect of khasra No.411/31 beyond his right which
befallen to his share. The suit was filed in the month of September,
2010, therefore, prima facie, challenge to the aforesaid sale deeds
was barred by the provisions of the Indian Limitation Act.
17. The subsequent sale deed (Ex.P/10) was executed by Kanhai in
favour of Raju Sahu on 3-7-2010. Perusal of sale deed would show
that there is no sub division of partition of khasra No.411/31,
therefore, the pleading by the plaintiff that there was no sub
division (बटांकन) of khasra No.411/31, prima facie, appears to be
found correct. The sale deed, which was subject of challenge, was
in respect of khasra No.483/1, the new number. Though there is an
oral evidence by the parties that khasra No.411/31 was
subsequently renumbered as 483/1, however, the renumbering of
khasra is not on record.
18. A copy of the order dated 6-5-2010 passed by the Naib Tahsildar,
Durg, is placed on record by the appellant by filing an application
under Order 41 Rule 27 CPC to demonstrate that no renumbering
was made in respect of the subject land, however, in the written
statement this fact is admitted that khasra No.411/31 was
renumbered as khasra No.483/1. Therefore, it creates an ambiguity
in the revenue document, which is proved vide Ex.P/2 & P/3 i.e.
FA No.89 of 2014
khasra panchshala, wherein names of Manrakhan & Sunderlal are
recorded. The subsequent revenue document (Ex.P/3) shows
partition in respect of khasra No.411/31.
19. As per the partition deed (Ex.P/1) the severance of the share was
shown, therefore, when the severance of the shares has been shown
the sale deeds which were executed in between 1972 and 1974
whether they comprise in khasra No.411/31 to the share of
Manrakhan and Sunderlal the uncertainty exists. The learned trial
Court by drawing presumption has given a finding that the property
which was sold by Kanhai since exceeds his right which he got by
way of partition it would be presumed by subsequent sale of 2010
was the part of share of other brothers namely; Manrakhan &
Sunderlal.
20. We are of the view that a decree on the basis of such presumption
cannot be sustained. When the earlier sale deed exists in respect of
the same property which comprise in khasra No.411/31 (old
number) what was the identity of property is required to be clarified
for the reason that on technicalities the benefit also cannot be
granted to the appellants when, prima facie, we find that the
properties were sold by Kanhai in excess of his share which
befallen to him by partition.
21. Another application has also been filed under Order 1 Rule 10 CPC
to say out of 0.60 hectares which was held by Manrakhan &
Sunderlal relating to khasra No.483/1; 0.45 hectare sold to Raju
FA No.89 of 2014
Sahu and 0.15 hectare was sold to Manisha Chandrakar then to
Arun Kumar Beri, who had filed an application under Order 1 Rule
10 CPC. In order to avoid further multiplicity of litigation, since
the sale deed executed in favour of Arun Kumar Beri was on 16-3-
2020, to adjudicate the rights of the parties and ascertain the
identity of the land, sold in respect of Khasra No.411/31 (old
number) / 483/1 (new number), we deem it proper to remand the
case to the learned Court below for further adjudication to give a
clear finding with respect to ascertain identity of lands. The parties
shall be free to amend the pleadings and adduce evidence to
establish the identity of land sold by Kanhai. The identification of
land sold shall also be ascertained qua the property befallen to the
share of other two brothers namely; Manrakhan & Sundarlal.
22. Accordingly, the impugned finding of judgment and decree are set
aside.
23. The application filed under Order 1 Rule 10 CPC is allowed. Name
of Arun Kumar Beri be impleaded as a defendant in the plaint.
After necessary impleadment, the parties may file their amended
pleadings. Learned trial Court shall allow the parties to lead their
evidence so as to demarcate and identify the land of the respective
parties by adducing evidence and thereafter shall adjudicate the
matter afresh in accordance with law and on its own merits.
FA No.89 of 2014
24. The parties are directed to appear before the learned Court below on
30th September, 2022 (Friday). From that date, the Court below is
requested to decide the matter within a period of one year.
25. Record of the trial Court be sent back forthwith.
26. In the result, the instant first appeal is allowed to the extent
indicated above, leaving the parties to bear their own cost(s).
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Gowri
