Santosh Kumar Mishra vs Anil Kumar Mishra
2023 Latest Caselaw 1092 Chatt

                                          1

                                                                            NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                                 SA No. 279 of 2018

           Santosh Kumar Mishra S/o Late Radheshyam Mishra Aged About 60
           Years R/o Village Dehri, At Present R/o Devkar, Tahsil Saja, District
           Bemetara, Chhattisgarh (Plaintiff),
                                                         ---- Appellant/Plaintiff
                                         Versus

        1. Anil Kumar Mishra S/o Radheshyam Mishra Aged About 50 Years R/o
           Village Dehri, Tahsil Saja, District Bemetara, Chhattisgarh.

        2. Smt. Godawari Bai Wd/o Late Radheshyam Mishra Aged About 80 Years
           R/o Village Dehri, At Present R/o Durg House No. 26e, New Police Line,
           Durg, Tahsil And District Durg, Chhattisgarh.

        3. Smt. Malni W/o Takeshwar Mishra Aged About 55 Years D/o Late
           Radheshyam Mishra, R/o Village Farasbod, Tahsil Kondagaon, District
           Kanker, Chhattisgarh.

        4. Smt. Neelu Sharma W/o Bedan Sharma Aged About 53 Years D/o Late
           Radheshyam Mishra, R/o Durg, House No. 26e, New Police Line, Durg,
           Tahsil And District Durg, Chhattisgarh.

        5. State Of Chhattisgarh Through Collector Bemetara, District Bemetara,
           Chhattisgarh (Defendants).
                                                     ---- Respondents/Defendants

(Cause title taken from CIS)

For Appellant :Shri Manoj Paranjpe and Shri Subhank Tiwari, Advocates.

For Respondent 5/State :Shri Ravipal Maheshwari, P.L.

Hon'ble Shri Justice Sanjay S. Agrawal

Judgment/Order On Board 21.02.2023

Heard on admission.

1. This appeal has been preferred by the plaintiff - Santosh Kumar Mishra

under Section 100 of the Code of Civil Procedure, 1908, questioning the legality

and propriety of the judgment and decree dated 20.04.2018 passed by the

District Judge, Bemetara (C.G.) in Civil Appeal No.18-A/2017, whereby, the

learned appellate Court, while affirming the judgment and decree dated

20.07.2017 passed by the Civil Judge, Class-2, Saja in Civil Suit No.7-A/2015,

has dismissed the appeal. The parties to this appeal shall be referred hereinafter

as per their descriptions before the Courts below.

2. Briefly stated the facts of the case are that the plaintiff instituted a suit

claiming partition and injunction with regard to the property in question bearing

Khasra No.163, 147, 145 and 160 admeasuring 0.76 hectare, 0.34 hectare, 0.85

hectare and 0.33 hectare, respectively, total admeasuring 2.28 hectare as

described in plaint Schedule -'C' by submitting, inter alia, that the property in

question, which was held by his father Radheshyam along with others were the

ancestral properties and in 1998, an oral partition was effected by him, whereby

the suit property has fallen in his share. It is pleaded that though an oral partition

was made as such, but the revenue papers are still shown to be recorded in their

joint names and that after the death of father Radheshyam on 18.02.2010, the

Namantaran Panji was recorded in the name of plaintiff and defendants No. 1 to 4

and while taking undue advantage of it, a proceeding was initiated by defendants

No. 1 to 4 for partition under Section 178 of the Chhattisgarh Land Revenue

Code, 1959 (for short, the Code of 1959) before the Tehsildar, Saja, where the

said authority has passed the order of partition on 24.11.2014 in Revenue Case

No.22-A/27/2013-14, which was reversed by the Collector vide its order dated

28.11.2014 in Case No. 6-A/27/2014-15. It is pleaded further that since the

dispute with regard to question of title arose before the Revenue Authorities,

therefore, he has been constrained to institute the suit in the instant nature.

3. While denying specifically the factum of oral partition as claimed by the

plaintiff, it was pleaded by the defendants that the property in question was the

ancestral property and after the death of their father Radheshyam, it was

recorded in their joint names. The claim as made is, therefore, liable to be

dismissed.

4. From perusal of the averments made in the plaint, it appears that the

plaintiff is claiming his right over the property in question as described in plaint

Schedule - 'C' on the basis of an oral partition which was said to have been

effected by his father Radheshyam in 1998 and in order to establish the same, a

registered deed of sale, dated 09.04.2001 and a deed of "Batwaranama" marked

as Ex.P-7 and Ex.P-8, respectively were produced on record. However, a bare

perusal of the said document (Ex.P.8) would show that it was effected amongst

Radheshyam and his sons, namely, Santosh Kumar and Anil Kumar and they

were shown to be as Party No.1, 2 & 3 respectively, but the signatures of said

Santosh Kumar and Anil Kumar did not find place therein. That apart, the

signature of different persons, namely, Ganeshram Nishad, Channulal and

Netram are depicted as Party No.1, 2 and 3 respectively in the second page of it.

The said document (Ex.P.-8) thus appears to be a suspicious one which was

executed by father Radheshyam on 19.06.1998. Pertinently to be noted here

further that the alleged document has been executed in presence of the

witnesses, namely, Jagtaran Banjare and Ramjee, but for the reasons best known

to the plaintiff, they were not examined in order to prove the same. In absence

thereof, no reliance, therefore, could be placed upon it in order to arrive at a

conclusion that the partition was effected orally by father Radheshyam in 1998, as

claimed by the plaintiff. In so far as the registered deed of sale (Ex.P-7) is

concerned, it appears that though it was mentioned therein as reflected from its

"Note", that the part of the property bearing Khasra No.279 admeasuring 0.40

acre was sold with the consent of said Anil Kumar while mentioning therein that it

would be presumed to be fallen in his share, but, merely on such an

endorsement, particularly, when the oral partition was not found to have been

established while considering the deed of "Batwaranama" (Ex.P.8), no reliance,

therefore, could be placed upon it as well. Consequently, the Courts below upon

due and proper appreciation of the evidence led by the parties, have rightly

dismissed the plaintiff's claim by holding that no partition as such was ever made

orally in 1998 and I, therefore, do not find any question of law, much less the

substantial questions of law which arise for determination in this appeal.

5. The appeal, being devoid of merit, is accordingly dismissed at the

admission stage itself.

No order as to costs.

Sd/-

(Sanjay S. Agrawal) Judge Anjani