Jhunnu Lal vs Ramsundar
2022 Latest Caselaw 6031 Chatt

                                                             Page 1 of 14

                                                                  NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                         SA No. 750 of 2018

                      Reserved on : 29.06.2022

                      Delivered on : 27.09.2022

1.    Jhunnu Lal, S/o Late Budhan, Aged About 57 Years, R/o Village
      Karanji, Tahsil- Surajpur, District- Surajpur (C.G.)
2.    Harilal, S/o Jhunnu Lal, Aged About 35 Years.
3.    Fuleshwar, S/o Jhunnu Lal, Aged About 42 Years.
      Both are R/o Village- Karanji, Tahsil- Surajpur, District- Surajpur
      (C.G.)
                               ---- Appellants/Defendants No. 1, 3 & 4

                                Versus
1.    Ramsundar, S/o Kanwal Ssay, Aged About 52 Years, R/o Village-
      Karanji, Chowki Karanji, Police Station Jainagara, Tahsil-
      Surajpur, District- Surajpur (C.G.)
2.    Smt. Kaushilya, W/o Samaylal, Aged About 50 Years, Caste
      Rajwar, R/o Village Harratikra, Police Station Jainagar, Tahsil &
      District- Surajpur (C.G.)
3.    Rajendra Prasad Rajwade, S/o Rampal, Aged About 45 Years,
      Caste Rajwar, R/o Village Baroul, Tahsil & District- Surajpur
      (C.G.)
4.    Harishankar, S/o Rampal, Aged About 40 Years, Caste Rajwar,
      R/o Village Kaskela, Police Station Bhatgaon, Tahsil & District-
      Surajpur (C.G.)
5.    Jagnarayan, S/o Rampal, Aged About 35 Years, Caste Rajwar,
      R/o Village Karanji, Police Station Vishrampur, Tahsil & District-
      Surajpur (C.G.)
6.    Dhaneshwari, S/o Sughan, Aged About 47 Years, R/o Village
      Rampur, Tahsil Odgi, District- Surguja (C.G.)
7.    Taneshwari, S/o Sughan, Aged About 45 Years, R/o Village
      Telaikachhar, Tahsil Surajpur, District- Surguja (C.G.)
8.    Parmeshwari, D/o Sughan, Aged About 42 Years, R/o Village
      Souki, Police Station & Tahsil- Surajpur, District- Surguja (C.G.)
                                            ---- Respondents/Plaintiffs

9. Smt. Jugri, Wd/o Rampyari, Aged About 58 Years.

10. Gangeshwar, S/o Late Rampyari, Aged About 38 Years.

11. Jirjodhan, S/o Late Rampyari, Aged About 35 Years.

12. Balkeshwar, S/o Late Rampyari, Aged About 32 Years.

13. Bhupendra Rajwade, S/o Late Rampyari, Aged About 28 Years.

All by Caste Rajwar, R/o Village- Banshipur, Tahsil- Pratappur, District- Surajpur (C.G.)

14. State of Chhattisgarh, through Collector Surguja-Ambikapur, District- Surguja (C.G.) Respondents/Defendants

For Appellants : Mr. H.B. Agrawal, Sr. Advocate with Ms. Priti Yadav, Advocate.

For State/ Respondent No. 14 : Mr. T.N. Nande, Panel Lawyer.

Hon'ble Shri Justice Narendra Kumar Vyas

C.A.V. JUDGMENT

1. Heard on admission.

2. This second appeal has been filed by the appellants/defendants No. 1, 3 & 4 under Section 100 of the C.P.C. against judgment and decree dated 29.10.2018 passed by Third Additional District Judge, Surajpur, District- Surajpur (C.G.) in Civil Appeal No. 44- A/11 [Ram Sundar & others Vs. Jhunnu Lal & others], allowing the appeal filed by the plaintiffs against the judgment and decree dated 13.08.2009 passed by Second Civil Judge Class-II, Surajpur, District- Surguja (C.G.) in Civil Suit No. 102A/2008 by which the learned trial Court has dismissed the suit filed by the plaintiffs.

3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 102A/2008 which was filed before the trial Court for declaration of title, partition, possession, for grant of permanent injunction and declaration of sale-deed dated 05.10.2001 to be null and void.

4. The brief facts, as reflected from the plaint averments are that the plaintiffs have filed a civil suit before the trial Court on 20.06.2002 mainly contending that the plaintiffs and defendant No.1- Budhan who during pendency of the civil suit expired, as such, defendants No. 1A & 1B have been arrayed as

defendants. It has been pleaded that the plaintiff and defendant No. 1 have ancestral property at Village- Karanji & Vanshipur, which was acquired by Late Ramnath from Estate Survey Settlement Surguja. The plaintiff's father Sudhan, Kanwal Sai & original defendant No. 1 have inherited the property after demise of their father Late Ramnath, who expired in 1967-68, which has been described in Schedule-A & B of the plaint. The property described in Schedule-A of the plaint is situated at Village- Karanji which is 22 Khasra numbers area admeasuring 5.743 Hectare. The property described in Schedule-B is situated at Village- Banshipur bearing 12 Khasra numbers admeasuring area 2.196 Hectare. The property described in Schedule-C, which has been sold to defendant No. 2 on 05.10.2001 and is 5 Khasra numbers area 1.791 Hectare whereas the property sold to defendant No. 3 described in Schedule-D of the plaint are in 5 Khasra numbers area 1.243 Hectare and area part of the property of Schedule-A of the plaint, which have been sold to defendants No. 2 & 3 by defendant No. 1. The property described in Schedule-E situated at Village- Banshipur is a lease property bearing Khasra No. 726/1 and area admeasuring 0.555 Hectare.

5. It has been further contended that in the year 1960, plaintiffs' father has divided the property mentioned in Schedule-A & B of the plaint between himself, Sudhan & defendant No. 1 in presence of senior citizen of village namely Kishun Mithu and since then they are in separate possession of their respective share, but revenue record of the property described in Schedule- A of the plaint is in joint name of Kanwal Sai, Sudhan & defendant No. 1 whereas the revenue record of the property described in Schedule-B of the plaint is recorded in the name of Budhan. It has been further contended that the property mentioned in Schedule-A of the plaint is not in title and possession of defendant No. 1, but misusing the revenue entry, the defendant No. 1 has sold the property to defendants No. 2 &

3 @ Rs. 95,000/- & Rs. 70,000/- through registered sale-deed on 05.10.2001 bearing Khasra No. 471, 472, 263, 264, 406 area admeasuring 0.231, 0.210, 0.417, 0.470, 0.455 total 1.791 Hectare and Khasra No. 353, 1330/1, 1330/2, 630, 1012 area admeasuring 0.624, 0.065, 0.125, 0.413, 0.016 total 1.243 Hectare have been sold to defendant No. 3. These properties have been described in Schedule-C & D of the plaint. Since the property was not in possession of defendant No. 1, therefore, the sale-deed executed by defendant No. 1 is null and void and is not binding upon the plaintiffs.

6. It has been further contended that the partition was done in the year 1960 between plaintiffs' father- Late Kanwal Sai, Sudhan & defendant No. 1 and if the court finds that the partition has not been actually done, therefore, being legal representative of Kanwal Sai and Sudhan, they are entitled to acquire 2/3 rd share of the property described in Schedule-B of the plaint as it is a self-acquired property of Kanwal Sai. Since defendant No. 1 has sold the property to unknown person without any title or authority, this has necessitated them to file civil suit for declaration of title, possession and also for declaring the sale- deed dated 05.10.2001 executed in favour of defendants No. 2 & 3 to be null and void.

7. During pendency of the suit, defendant No. 1 expired, therefore, defendants No. 1A & 1B have been arrayed as respondents and they have filed written submission denying the allegation made in the plaint mainly contending that the suit property mentioned in Schedule-C & D is in exclusive share of Late Budhan and he was in possession of the suit property, therefore, he has full right to transfer the same and for his legal necessity, he has sold the property to defendants No. 2 & 3 through registered sale-deed. It has been further contended that the plaintiffs have no right over the property as they are in possession of the suit property and they are also paying rent. It has been further contended that the property mentioned in Schedule-B of the plaint is self acquired

property of Budhan and he has acquired it after being separated from joint family with own fund and labour done by him, therefore, defendant No. 1 has sold property to the defendants No. 2 & 3. It has been further contended that Khasra No. 726/19 area 0.555 is self acquired property of Late Budhan and the plaintiffs have no right over the property. After death of Ramnath, Budhan, Sudhan & Kanwal Sai have partitioned their property and they are living separately in the share received by them in the partition and for his legal necessity, defendant No. 1 has sold the property mentioned in Schedule-C & D of the plaint as it is in exclusive jurisdiction of Budhan, therefore, he has right to sell the property to defendants No. 2 & 3 through registered sale- deed which is legal justified and binding upon the plaintiff. It has been further contended that the suit is barred by limitation and the same is liable to be rejected.

8. Defendants No. 2 & 3 have filed their written statement reiterated the stand that after death of Ramnath, the properties mentioned in Schedule-A & B of the plaintiff have been partitioned between Budhan, Sudhan & Kanwal Sai and they are living separately in their possession of property and they have purchased the property from original owner, therefore, there is no illegality in selling the property to them and would pray for dismissal of the suit. It has been further contended that the sale-deed has been executed by the persons authorized to sell the property, therefore, it is binding upon the plaintiffs and the plaintiffs cannot claim any part of the property which has already been sold by them.

9. Defendants No. 2 & 3 have also filed their counter claim wherein it has been prayed that it be kindly declared that defendants No. 2 & 3 are the sole owner of the suit property and interim injunction may also be granted against the plaintiffs by restraining them from interfering in possession of the property mentioned in Schedule-A & B of the plaint through in person or through their servant or through any representative.

10. On pleadings of the parties, the trial Court has framed as many as seven issues. Issue No. 1, 2 & 3 are relevant therefore, they are being extracted below:-

(i) Whether the plaintiffs are title holder of the suit property described in Schedule-A of the plaint?

or Whether the plaintiffs are title holder of 2/3 rd share of the property described in Schedule-B & E of the plaint?

(ii) Whether the plaintiffs are entitled to get share of 2/3 rd of the suit property on partition?

(iii) Whether the sale-deed executed by defendants No. 1A & 1B in favour of defendants No. 2 & 3 is null and void?

11. The plaintiffs to substantiate their averments have examined Ram Sundar (PW-1), Shiv Shankar (PW-2) & Sumeri (PW-3) and exhibited documents namely affidavit (Ex. P/1), sale-deed in favour of Harilal dated 05.10.2001 (Ex. P/2), sale-deed in favour of Fuleshwar (Ex. P/3), Kishtabandi Khatouni for the year 1984- 85 (Ex. P/4), Kishtabandi Khatouni for the year 1984-85 (Ex. P/5), certified copy of Surguja Estate Settlement (Ex. P/6), Khasra Panchshala for the year 2001-02 (Ex. P/7), Form B-1 for the year 1999-2000 (Ex. P/8).

12. The defendants to substantiate their case has examined Jhunnu Lal (DW-1), Nandlal (DW-2), Fuleshwar (DW-3) and exhibited documents namely B-1 for the year 2001-02 (Ex. DW-1), B-1 for the year 1987-88 (Ex. D/2), B-1 for the year 2002-03 (Ex. D/3), Khasra for the year 2002-03 (Ex D/4), B-1 for the year 2002-03 (Ex. D/5), Khasra for the year 2002-03 (Ex. D/6), sale-deed dated 14.06.1967 (Ex. D/7), sale-deed dated 27.06.1972 (Ex. D/8), sale-deed dated 19.02.1988 (Ex. D/9) & certified copy of Revenue Case No. 364/A-9/82 (Ex. D/10).

13. Learned trial Court on the basis of evidence, material on record has dismissed the suit filed by the plaintiffs on the count that the plaintiffs have failed to prove their case, defendants No. 2 & 3 have proved their counter claim and restraining the plaintiffs or through any person or through their representatives or through

servant from interfering in possession of the property of defendants No. 2 & 3.

14. Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiffs have preferred first appeal before the First Appellate Court i.e. Third Additional Judge, Surajpur, District- Surajpur (C.G.) contending that the learned trial Court has passed the order without appreciating the evidence, material on record and on perverse finding, the suit has been dismissed. It has been further contended that it has been proved during trial that there was no separation of revenue record still defendant No. 1 has sold the property in favour defendants No. 2 & 3 still the trial Court has dismissed the suit and would pray for allowing the appeal. During pendency of the appeal, appellant No. 2-Vifaiya expired, therefore, Koushilya, Rajendra Prasad Rajwade, Harishankar, Jagnarayan have been arrayed as appellants No. 2A, 2B, 2C & 2D respectively.

15. Learned First Appellate Court vide its judgment and decree dated 29.10.2018 has partly allowed the appeal declaring the sale-deed dated 05.10.2001 to be null and void. Being aggrieved with the judgment and decree passed by the learned First Appellate Court, defendants No. 1, 3 & 4 have filed this second appeal under Section 100 of the C.P.C.

16. Learned Senior Advocate for the appellants/defendants No. 1, 3 & 4 would submit that the finding recorded by the First Appellate Court is perverse and contrary to the record. He would submit that the learned First Appellate Court has committed error in allowing the appeal in part and by declaring sale-deed dated 05.10.2001 (Ex. P/3) by Budhan is illegal and void. He would further submit that the First Appellate Court has also committed error in dividing the land in question @ 1.914 Hectare to all parties in absence of Sudhan who was necessary party and was alive at the time of filing suit, therefore, suit ought to have been dismissed under Rule 9 of Order 1 of the C.P.C. He would further submit that the daughters of Sudhan have not been arrayed in

the suit, as such, the suit is not maintainable in view of Section 6 of Hindu Succession Amendment Act, 2005. He would further refer to paragraph 12 of the statement of Shiv Shankar, who in examination-in-chief has submitted that Budhan, Sudhan & Kanwal Sai after separation were living in separate house and have received the property in partition and doing agricultural work separately, therefore, the finding recorded by the learned First Appellate Court is perverse and contrary to evidence and material on record, which is liable to be set aside by this Court.

17. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

18. To consider the submissions of learned Senior Advocate for the appellants, it is expedient for this Court to examine the evidence brought on record by the parties. The plaintiff witness Ram Sundar (PW-1) in examination-in-chief has clearly stated that after partition with regard to the property described in Schedule- A & B, they are in separate possession of the their share, but the property described in Schedule-A was jointly recorded in the name of Budhan, Sudhan & Kanwal Sai whereas the property described in Schedule-B of the plaint situated at Village- Banshipur, name of Budhan was recorded. The witness was cross-examined and no material was brought on record to rebut the said statement that accounts have not been separated. The plaintiff's witness Shiv Shankar (PW-2) has also stated that they are in separate possession of their share, but the revenue records were jointly maintained. Again, this was not subjected to rebuttal by the defendants in the cross-examination. The plaintiff's witness Sumeri (PW-3) has also supported case of the plaintiffs has taken the same stands and in the cross- examination, it has also brought on record that the suit property situated at Village- Karanji is ancestral property of Budhan, Sudhan & Kanwal Sai and defendant-Dhannu Lal. In paragraph 8 of the cross-examination, it has also admitted by the witness that the plaintiff and defendants after partition are in possession

of their respective share and earning from it.

19. The defendants' witness Jhunnu Lal (DW-1) who has reiterated the stand taken in the written statement filed by them, but no document was brought on record that the revenue records have been separated and Budhan has sold the property of his share. The witness in his cross-examination has stated that at Village- Karanji, 18 acres land was there and it was self acquired property of his grandfather.

20. The defendants' witness Nandlal (DW-2) has reiterated the stand taken by the defendants in the written statement and has stated that the property described in Schedule-C & D of the plaint which is situated at Village- Karanji, belonged to defendants and he has sold the same for his legal necessity. The witness in paragraph 14 of his cross-examination, he has stated that he is not aware that Budhan, who has sold the property of Village- Karanji belongs to whose share then he voluntarily said that he has sold his share and also admitted that Budhan has sold 3 acres. The defendants' witness Fuleshwar (DW-3) has reiterated the same stand and in the cross-examination at paragraph 13 the witness has stated that the suit property situated at Village- Banshipur is self acquired property of his grandfather Budhan.

21. Learned Senior Advocate for the appellants would submit that without arraying the necessary party to the case, the judgment and decree of partition should have not been passed by the learned First Appellate Court. The contention made by learned Senior Advocate for the appellants cannot be considered at this juncture as in the trial Court, no such plea was ever been taken by the appellants that there was non-joinder of the necessary party and for the first time, the appellants are taking this plea, which cannot be examined at this juncture. Even the learned First Appellate Court has not directed for partition of the suit property but only examined whether the deceased-Budhan has right to sell the property beyond its share or not. Since the First Appellate Court has already protected interest of the legal heirs

of Sudhan by providing equal share to Budhan, Sudhan & Kanwal Sai in the ancestral property as described in Schedule-A of the plaint, as such, it is not fatal to give any right to defendants No. 1, 3 & 4 to pray for dismissal of the suit on the plea of non-joinder of necessary party, which has been taken for the first time before this Court. Even otherwise, the defendant who is contesting since beginning from 2003 has never raised any objection before the trial Court as well before the First Appellate Court, they are taking this plea for first time which is not maintainable and deserves to be rejected.

22. In the pleading also the defendants have not raised objection that the property described in Schedule-A is not ancestral property, therefore, the contention of the learned Senior Advocate for the appellants for admission of the appeal on this count, is not acceptable and deserves to be rejected.

23. From the material adduced before the Courts below, it is evident that learned First Appellate Court after appreciating the evidence, material on record, has recorded its finding that the property mentioned in Schedule-A of the plaint is ancestral property and as per Ex. D/10, the property described in Schedule-E of the plaint is as lease property given to Budhan by the Government. The property described in Schedule-B of the plaint has been purchased by Budhan on 17.05.1967 and 27.06.1972 from purchaser Sundar Ram Sao. Similarly the property mentioned in Schedule-B of the plaint has also been purchased through registered sale-deed Ex. D/8, as such as per Ex. D/9, the property described in Schedule-B of the plaint has been sold on 19.02.1988 by Budhan and the property mentioned in Schedule-B of the plaint Khasra No. 753/2 area admeasuring 0.121 Hectare has been purchased by Budhan and Khasra No. 726 has been received by Budhan on lease as per Ex. D/10. Similarly the property mentioned in Schedule-B as per Ex. D/7 to D/10 has been purchased by Budhan in his name and his son namely Hriday Lal, as such, the property mentioned in Schedule-

B of the plaint is self acquired property of Budhan, therefore, the contention that the property has been acquired by Budhan is not acceptable and has recorded its finding that the property mentioned in Schedule-B of the plaint is self acquired property of Budhan, which is proved by the defendants by oral and documentary evidence. So far as property mentioned in Schedule-A of the plaint is concerned, the First Appellate Court has recorded its finding that the suit property has been recorded in the name of Budhan, Sudhan & Kanwal Sai in the revenue record, as such, the property mentioned in Schedule-A of the plaint is ancestral property and the defendants have not been able to rebut the said finding by adducing evidence, therefore, the property described in Schedule-A of the plaint is an ancestral property wherein names of Budhan, Sudhan & Kanwal Sai have equal share, therefore, Budhan is only entitled to sell the property of his share and in this case, Budhan has sold the property exceeding its area which he is entitled to get on partition.

24. Learned First Appellate Court has also considered documentary evidence Ex. D/2 & D/11 according to which Budhan has sold the property to Hari Lal S/o Jhunnu Lal situated at Village- Karanji bearing total 5 Khasra area admeasuring 1.791 Hectare and as per Ex. D/3, Budhan has sold 5 plots area admeasuring 1.243 Hectare to Fuleshwar S/o Jhunnu Lal. Jhunnu Lal is son of Budhan and Harilal and Fuleshwar are son of Jhunnu Lal, as such, Budhan has sold the property to his grandson described in Schedule-A of the plaint, as such, total property sold to defendants No. 2 & 3 comes to 3.034 Hectare whereas the property described in Schedule-A of the plaint is total 22 number Khasra area 5.743 Hectare and the same was recorded in the name of Budhan, Sudhan & Kanwal Sai and it was orally partitioned, but no partition proceedings of accounts were done and even the defendants have failed to prove that after partition, the plaintiff and defendant No. 1 are separately doing the

agriculture work in the property described in Schedule-A of the plaint and also unable to establish whether after oral partition, the property has been recorded in their names separately. As such, the learned First Appellate Court has recorded its finding that the total area of land is 5.743 Hectare and since the plaintiff and defendant No.1 are the brothers, therefore, they are entitled to get equal 1/3rd share of the property described in Schedule-A of the plaint and accordingly it is held that that Budhan is entitled to get 1.914 Hectare and out of which, he has sold 1.791 Hectare as described in Schedule-C of the plaint and 1.243 Hectare as described in Schedule-D of the plaint. Thus, he has sold 3.043 Hectare land, which is exceeded its share, therefore, the sale-deed of the suit property which is exceeding the share of Budhan will be null and void. Accordingly, the judgment and decree passed by the learned trial Court has been set aside and it has been directed that the sale-deed dated 05.10.2001 has been declared to be null and void.

25. From the evidence adduced before the trial Court, it is quite vivid that there was no revenue record which suggests that the suit properties have been recorded in the name of plaintiff and defendant No. 1 separately, as such, it is presumed that the suit property described in Schedule-A of the plaint is joint property and is recorded in the name of Budhan, Sudhan & Kanwal Sai even after partition. This fact was pleaded and proved by the plaintiffs, which has not been rebutted by the defendants by adducing evidence by submitting the revenue records to substantiate that they are in separate possession of their individual share. Learned First Appellate Court after appreciating the evidence and material on record has rightly passed the judgment and decree by recording its finding that original defendant No. 1 is actually entitled to sell his share to the extent of 1.794 Hectare, but he has exceeded that his share, therefore, the sale-deed is not binding upon the plaintiff.

26. The First Appellate Court has passed the judgment and decree

after appreciating the evidence, material on record, which does not suffer from perversity or illegality which warrants interference by this Court.

27. 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 finding recorded by the First Appellate Court that the suit property is an ancestral property and the plaintiff and defendant No. 1 (since deceased his legal representative) have equal share. Hon'ble the 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 Para 43)."

28. 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 1 (2020) 4 SCC 659

determination in the case.

29. 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.

30. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Arun