Chattisgarh High Court
Jageshram Jain vs Smt. Hirmotin on 13 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No.252 of 2020
Jageshram Jain S/o Late Bideram Jain, Aged About 58 Years R/
o Village Gitpahar, Thana And Tahsil Charama, District Uttar
Baster Kanker Chhattisgarh...............Plaintiff, District : Kanker,
Chhattisgarh
---- Appellant/Plaintiff
Versus
1. Smt. Hirmotin W/o Maniram, Aged About 49 Years R/o Village
Gitpahar, Tahsil Charama, District Uttar Baster Kanker
Chhattisgarh............Defendant, District : Kanker, Chhattisgarh
2. Mohan S/o Late Uderam Aged About 45 Years R/o Village
Gitpahar, Tahsil Charama, District Uttar Baster Kanker
Chhattisgarh............Defendant, District : Kanker, Chhattisgarh
3. Mahendra, S/o Late Uderam, Aged About 42 Years R/o Village
Gitpahar, Tahsil Charama, District Uttar Baster Kanker
Chhattisgarh............Defendant, District : Kanker, Chhattisgarh
4. Kulesh, S/o Late Bideram, Aged About 52 Years R/o Village
Gitpahar, Tahsil Charama, District Uttar Baster Kanker
Chhattisgarh............Defendant, District : Kanker, Chhattisgarh
5. Smt. Bisobai, W/o Budhram, Aged About 62 Years R/o Village
Gitpahar, Tahsil Charama, District Uttar Baster Kanker
Chhattisgarh............Defendant, District : Kanker, Chhattisgarh
6. The State Of Chhattisgarh Through Collector Kanker
Chhattisgarh..............Defendant, District : Kanker, Chhattisgarh
---- Respondents/Defendants
Present:-
Shri Viprasen Agrawal, counsel for the appellant.
Shri Ravipal Maheshwari, Panel Lawyer for the State/Respondent
No.6.
Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal
Order On Board
13/01/2023
1. Heard on admission.
2. This appeal has been preferred by the plaintiff under Section 100
of the Code of Civil Procedure, 1908 questioning the legality and
propriety of judgment and decree dated 25.01.2020 passed in Civil
Appeal No.12/2018 by the 1st Additional District Judge, North Bastar-
Kanker, whereby the appellate Court, while affirming the judgment and
decree dated 23.07.2018 passed by the 1st Civil Judge Class-I, North
Bastar-Kanker in Civil Suit No.7-A/2012, has dismissed the appeal.
The parties shall be referred hereinafter as per their description before
the Courts below.
3. The facts, which are essential for adjudication of this appeal, are
that a suit for declaration of title, partition, separate possession along
with injunction, claiming 1/6th share of the property in question has
been made by the plaintiff, by submitting inter alia that the family
arrangement with regard to the properties in question described in
para-3 of the plaint was made and, according to that, Holding No.341
with regard to 1.450 hectares of land situated at Village Geetpahar,
Tahsil Charama, District North Bastar-Kanker as described in detail
therein came in the name of Bideram and Bisobai, who are children of
deceased-Budhram, the erstwhile owner of the property in question,
total admeasuring 8.610 hectare, while Holding No.33 with regard to
7.160 hectare came in the name of Uderam alone, the another son of
said Budhram. According to the plaintiff, it was only the family
arrangement and, in fact, no partition as such was ever taken place
amongst them and, therefore, the plaintiff is entitled to 1/6th share with
regard to the property in question left by his grandfather namely
Budhram.
4. While contesting the aforesaid claim, it was pleaded by
defendants No.1 to 4, who are the legal heirs of the deceased-Uderam
that after the death of Budhram, the erstwhile owner of the property in
question, the entire property held by him, was recorded in the name of
his children namely Uderam, Bideram and Bisobai and thereafter, they
partitioned the same 30 years ago, where unfertile lands came in share
of Uderam, while fertile lands in joint names of Bideram and Bisobai.
Since the partition had already taken place, therefore, the claim as
made by the plaintiff-Jagesh Ram Jain S/o Bideram, deserves to be
dismissed.
5. Kishtabandi Khatoni, Form B-I marked as Ex.P-1 was recorded
in the name of Bideram and Bisobai with regard to the Holding No.341
with regard to the properties as mentioned in para 3 of the plaint. It
appears from perusal of other revenue papers, like Khasra Panchshala
marked as Ex.P-2 to Ex.P-4, it was shown to be recorded in the name
of said Bideram and Bisobai. It appears further from a bare perusal of
Kishtabandi Khatoni, Form B-I, marked as Ex.P-18, properties as
mentioned in plaint para 3 with regard to Holding No.33 has been
shown to be recorded in the name of Uderam and, likewise other
documentary evidence, like Khasra Panchshala, marked as Ex.P-19 to
Ex.P-21 also shown to be recorded in his name with regard to the said
properties. It appears further from a bare perusal of Ex.D-7 that upon
his (Uderam) death, it was recorded in the name of his widow namely
Siyawati and children Maniram, Mohan and Mahendra along with his
other heirs namely Kamalbati and Mithlesh, who were not made the
parties in the suit and, the name so recorded has not been objected by
the plaintiff-Jagesh Ram, as evidenced from his testimony para-8. That
apart, a bare perusal of his further statement, particularly paragraphs-7
& 8, would show that the patta, which was recorded in the name of
Uderam, was never questioned by his father-Bideram before any
appellate authority. It appears further from a bare perusal of the
statement of Sukalu, who was examined as PW-3, particularly para-7
of his testimony that all the legal heirs of Budhram were satisfied with
regard to the factum of partition, except the plaintiff-Jagesh Ram.
Besides, the statement of Dulasa Poya (PW-5), particularly para 13 of
his statement, would reveal that partition had taken place amongst the
heirs of Budhram, where Bideram and Bisobai had obtained joint
share, while Uderam was given separate share and during the entire
period of their life, i.e. Uderam and Bideram, the plaintiff-Jagesh Ram
Jain had raised no objection with regard to the factum of partition. In so
far as the document known as Form B-1 marked as Ex.P-33 recorded
in joint names of Uderam and Bideram, which appears to have been
filed by the plaintiff in order to show that no partition as such was made
amongst his pre-decessors in interest would, however, of no use as the
properties described therein are 667/1, 667/2, 668, 671 and 586 which
are distinct form the suit properties.
6. It is true from a bare perusal of para-3 of the plaint that only
1.450 hectare of land came in the share of Bideram and Bisobai,
whereas 7.160 hectare came in the name of Uderam and there is, thus,
vast difference of division of properties amongst them, but, a bare
perusal of the statement of the plaintiff's own witness namely Dulas
Poya (PW-5), particularly para 9 of his testimony would show that the
fertile lands i.e. good quality of lands, were given to Bideram and
Bisobai, whereas, the land, which is not the fertile one i.e. not of a good
quality was given to Uderam. It, thus, appears that because of quality
of land, the alleged partition was made amongst them, else, it would
have been questioned by them. In view thereof, the Courts below have
not committed any illegality in holding that the partition amongst them
had already been effected after the sad demise of said Budhram, the
erstwhile owner of the property in question, while dismissing the
plaintiff's claim and, I do not find any infirmity in the same so as to call
for any interference in this appeal.
7. Consequently, no question of law, much less the substantial
questions of law, arise for determination in this appeal. The appeal
being devoid of merit is, accordingly dismissed at admission stage
itself.
No order as to costs.
SD/-
(Sanjay S. Agrawal)
Judge
Tumane
