Chattisgarh High Court
Anil Kumar vs Smt. Dharma Sheela Bai on 27 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 515 of 2015
1. Anil Kumar S/o Late Shri Madho Prasad Aged About 53 Years R/o
Pandaria, Tahsil Chuikhadan, District Rajnandgaon Chhattisgarh,
Chhattisgarh
2. Vinod S/o Late Shri Madho Prasad Aged About 49 Years R/o Pandaria,
Tahsil Chhuikhadan, District Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
3. Jitesh S/o Late Shri Madho Prasad Aged About 46 Years R/o Pandaria,
Tahsil Chhuikhadan, District Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
4. Late Rampal S/o Late Shri Madho Prasad Aged About 43 Years
4 (A) - Smt. Rashmi Tamrakar W/o Late Rampal Tamrakar, Aged About 33
Years R/o Pandaria, Tahsil Chhuikhadan, District Rajnandgaon
Chhattisgarh
4 (B) - Abhvaya Tamrakar S/o Late Rampal Tamrakar Aged About 2 Years
R/o Pandaria, Tahsil Chhuikhadan, District Rajnandgaon Chhattisgarh
4 (C) - Ku. Disha Tamrakar, D/o Late Rampal Tamrakar Aged About 5 Years
R/o Pandaria, Tahsil Chhuikhadan, District Rajnandgaon Chhattisgarh
4 (B) & 4 (C) represented by their natural guardian/mother Smt. Rashmi
Tamrakar, W/o Late Rampal Tamrakar.
5. Pravin S/o Late Shri Madho Prasad Aged About 40 Years R/o Village
Pandaria, Post Office Gandai Pandaria, Sub Tehsil - Gandai, District -
Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
6. Shyampal S/o Late Shri Madho Prasad Aged About 37 Years R/o Village
Pandaria, Post Office Gandai Pandaria, Sub Tehsil - Gandai, District -
Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
7. Smt. Divyabai Wd/o Late Shri Sunil Kumar Aged About 45 Years R/o
Village Pandaria, Post Office Gandai Pandaria, Sub Tehsil - Gandai, District
- Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
8. Smt. Lusubai Wd/o Late Shri Madho Prasad, Aged About 73 Years R/o
Village Pandaria, Post Office Gandai Pandaria, Sub Tehsil - Gandai, District
- Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
---- Appellants/Plaintiffs
Versus
1. Smt. Dharma Sheela Bai W/o Late Shri Radheshyam, Aged About 79 Years
R/o Pandaria, Post - Gandai, Tehsil - Chhuikhadan, District - Rajnandgaon,
Chhattisgarh
2. Smt. Pushpa Bai D/o Late Shri Paklu Saw, Died, Through- Legal
Representatives - District : Balod, Chhattisgarh
2
2A - Smt. Mukta Tamrakar W/o Sangeet, Aged About 32 Years
2B - Manikant S/o Prabhat Tamrakar, Aged About 36 Years
2C - Suryakant S/o Prabhat Tamrakar, Aged About 34 Years
3. Chhabilal S/o Narayan, Aged About 55 Years R/o Village Pendharvani,
Tehsil - Gandai, Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
4. Shatrughn S/o Derha Sahu Aged About 56 Years R/o Village Pendharvani,
Tehsil - Gandai, Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
5. Anuj S/o Bijul Sahu, Aged About 58 Years R/o Village Pendharvani, Tehsil -
Gandai, Rajnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh
6. Yuvram S/o Ferha Sahu, Aged About 52 Years R/o Village Pendharvani,
Tehsil - Gandai, Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
7. Bharat S/o Derha Sahu Aged About 54 Years R/o Village Pendharvani,
Tehsil - Gandai, Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
8. Ramesh S/o Shri Manglu Sahu, Aged About 50 Years R/o Village
Pendharvani, Tehsil - Gandai, Rajnandgaon Chhattisgarh, District :
Rajnandgaon, Chhattisgarh
9. Mukesh S/o Kejuram Sahu, Aged About 48 Years R/o Village Pendharvani,
Tehsil - Gandai, Rajnandgaon Chhattisgarh, District : Rajnandgaon,
Chhattisgarh
10. The State Of Chhattisgarh Through Collector, Rajnandgaon
Chhattisgarh..........Defendants No. 1 to 10 In The Original Suit)
---- Respondents
(Cause title taken from CIS)
For Appellants :Shri Arvind Shrivastava, Advocate.
For Respondents 1 to 8 :Shri Vivek Kumar Tripathi, Advocate.
For Respondent 9 :None, though served.
For Respondent 10/State :Shri Priyanshu Gupta, P.L.
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment/Order On Board
27.01.2023
Heard on admission.
1. This appeal has been preferred by the plaintiffs under Section 100 of the
Code of Civil Procedure, 1908, questioning the legality and propriety of the
judgment and decree dated 19.06.2015 passed by the Additional District Judge,
Khairagarh, District Rajnandgaon (C.G.) in Civil Appeal No.16-A/2011, whereby,
the learned appellate Court, while affirming the judgment and decree dated
28.09.2011 passed by the Civil Judge, Class-2, Chhuikhadan, District
Rajnandgaon in Civil Suit No.128-A/2008, has dismissed the appeal. The parties
to this appeal shall be referred hereinafter as per their descriptions before the
Court below
2. The facts, which are essential for adjudication of this appeal, are that a suit
for declaration of title and injunction was made by the plaintiffs claiming ownership
with regard to the property in question described in plaint Schedule 'A' and also to
the effect that the entries made in favour of defendants No. 2 to 9 based upon the
registered deed of sales as executed in their favour by defendant No.1 are not
binding upon them. According to the plaintiffs, the property in question bearing
Kh.No.178/1 admeasuring 41.54 acres (New numbers have been shown in the
plaint Schedule 'A') situated at village Pendarvani, Tahsil Khairagarh, District Durg
(Now Rajnandgaon) was held by their father, namely, Madho Prasad. He
purchased the said property along with others from one Sonkunwar under the
registered deed of sale, dated 13.07.1957. He was, thus, the owner of the suit
property and, without any sale consideration had executed a registered deed of
sale on 25.09.1959 in favour of his sister, namely, Smt. Dharmasheela only by
love and affection. It is pleaded further that on 25.04.1991, said Smt.
Dharmasheela has relinquished her interest in favour of the plaintiffs while putting
them in possession thereof and, are continuously in possession, as such acquired
their interest by way of adverse possession as well. They are, therefore, entitled
to be declared as owner of the property in question as described in plaint
Schedule 'A'. Further contention of the plaintiffs is that despite execution of the
alleged deed of relinquishment, part of Kh.No.329/1 total admeasuring 1.14 acres
was sold to defendants No. 3 to 9, by executing a different sales, therefore, no
right, title or interest would confer upon them.
3. While contesting the aforesaid claim, it was stated by defendant No.1 -
Smt. Dharmasheela in her written statement that by virtue of a registered deed of
sale, dated 25.09.1959, the property in question bearing Kh.No. 178/1
admeasuring 41.54 acres was purchased from her brother, namely, Madho
Prasad and the revenue papers were thereafter recorded in her name. It is
pleaded further that by different deed of sales, all executed on 15.05.2001, she
sold the part of suit property, i.e., Kh.No.329/1, to defendants 3 to 9 and their
names were also recorded in revenue papers, therefore, the claim as made by the
plaintiffs deserves to be dismissed.
4. Defendant No.2 - Smt. Pushpa Bai, in her written statement, while
supporting the claim of the plaintiffs, has stated that out of the property in
question, 11.38 acres of land was purchased by her from her sister, namely, Smt.
Dharmasheela and thereafter, she has relinquished her interest on 27.01.2004 in
favour of the plaintiffs, and therefore, they may be declared the owner of the said
properties.
5. The defendants No.3 to 9, while contesting the plaintiffs' claim, have
pleaded specifically that they purchased the property in question, i.e.,
Kh.No.329/1 of the suit land, from defendant No.1 under different registered deed
of sales, all executed on 15.05.2001 and, as such they have acquired their valid
right, title and interest over it and, the revenue papers have accordingly been
mutated in their names, therefore, the plaintiffs' claim is liable to be dismissed.
6. What is, therefore, reflected from a bare perusal of the aforesaid pleadings
that the property in question, i.e., Kh.No.178/1 admeasuring 41.54 acres (New
numbers shown in plaint schedule 'A') along with other properties were purchased
by Madho Prasad, the predecessor-in-interest of the plaintiffs, from one
Sonkunwar under the registered deed of sale dated 13.07.1957 (Ex.P.1), who in
turn, has sold the suit land, i.e., Kh.No.178/1 admeasuring 41.54 acres to his
sister, namely, Smt. Dharmasheela, defendant No.1, while executing a registered
deed of sale (Ex.P.2) in her favour on 25.09.1959 and her name was thereafter
recorded in revenue papers as reflected from Adhikar Abhilekh, marked as Ex.P.6.
It appears further that after purchasing the property in question as such, said Smt.
Dharmasheela has sold the part of Kh.No.329/1 admeasuing 0.11 acres to
defendant No.3, namely, Chhavilal and his brother Khoman, under the registered
deed of sale dated 15.05.2001 (Ex.D.1) while putting them in possession thereof
and, likewise, by executing a registered deed of sale dated 15.05.2001 (Ex.D.2) ,
she sold the part of Kh.No.329/1 admeasuring 0.11 acres to defendant No.4,
namely, Shatruhan and, executed another registered deed of sale (Ex.D.3) on the
same day with regard to part of said Kh.No.329/1 admeasuring 0.20 acres to
defendant No.5, namely, Anuj. Similarly, defendant No.1 - Smt. Dharmasheela
has sold the part of Kh.No.329/1 admeasuring 0.11 acres to defendant No.6 -
Uram under the registered deed of sale dated 15.05.2001 (Ex.D.4) while putting
him in possession thereof and, likewise on the same day, she sold the part of its
land bearing Kh.No.329/1 admeasuring 0.11 acres to defendant No.7 - Bharat
vide Ex.D.5. She also executed a registered deed of sale on the same day with
regard to part of Kh.No.329 admeasuring 0.50 acres of land, in favour of
defendant No.8 - Ramesh, defendant No.9 - Mukesh and their brothers, namely,
Khomlal and Khemu, all sons of Manglu vide registered deed of sale dated
15.05.2001 (Ex.D.6). It, thus, appears that part of the suit land as described in
plaint Schedule 'A' has been sold by defendant No.1 - Smt. Dharmasheela to
different defendants, i.e., defendants No. 3 to 9 under the registered deeds of
sales, all executed on 15.05.2001 (Ex.D.1 to Ex.D.6). It appears further that
defendants No. 3 to 9, after purchasing the property in question as such, have
obtained revenue papers mutated in their favour and which was found to be
questioned by the plaintiffs before the Sub-Divisional Officer (Revenue), where, it
was refused by the said authority vide its order dated 31.03.2003 as reflected
from orders marked as Ex.P.19 to Ex.P.24.
7. Now, in so far as the application filed by the plaintiffs under Order 41 Rule
27 of the Code of Civil Procedure, 1908 before the lower appellate Court seeking
production of birth certificate of said defendant No.1 - Smt. Dharmasheela in
order to show that when the property in question was purchased by her from her
brother, namely, Madho Prasad, she was minor, and therefore, she has not
acquired any interest by virtue of the alleged registered deed of sale executed on
25.09.1959 (Ex.P.2) is, however, noted to be rejected as no plea in this regard
was made by them in their plaint, and therefore, the lower appellate Court has
rightly refused the same, so as to call for any interference in this appeal.
8. That apart, the plaintiffs' claim appears to be based mainly upon a deed of
relinquishment, purported to have been executed by defendant No.1 - Smt.
Dharmasheela in their favour on 25.04.1991 (Ex.P.4). However, a bare perusal of
the said document would show that it is an unregistered one, and therefore, it
cannot be said that the property in question, i.e., Kh.No.178/1 admeasuring 41.54
acres was relinquished by her in their favour. In view thereof, it cannot be said
that the plaintiffs have acquired their right, title or interest based upon the alleged
deed of relinquishment, nor could it be said that they have acquired their interest
by way of adverse possession, as both the pleas, i.e., claiming on the basis of
plea of relinquishment as well as based on the plea of adverse possession, are
mutually destructive with each other. Even otherwise, in absence of specific plea
of ouster, it cannot be said that the plaintiffs have acquired their interest by way of
adverse possession. Thus, from stretch of any imagination, it cannot be said that
the plaintiffs have acquired their interest over the property in question as
described in plaint Schedule 'A'.
9. In view of aforesaid factual background, the Courts below have rightly
arrived at a conclusion that defendant No.1 - Smt. Dharmasheela has acquired
her valid right, title and interest by virtue of a registered deed of sale dated
25.09.1959 (Ex.P.2) from her brother, namely, Madho Prasad and thereafter has
sold the part of it to defendants No. 3 to 9 , as observed herein above, vide
registered deed of sales (Ex.D.1 to Ex.D.6) and the plaintiffs have, therefore,
rightly been disentitled to be the owner of the property in question. The findings
so recorded by the Courts below, thus, deserve to be and are hereby affirmed.
10. 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
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet,
SA No.515 of 2015
Anil Kumar & Ors. Vs. Smt. Dharma Sheela Bai & Ors.
27.01.2023 Shri Arvind Shrivastava, counsel for the appellants.
Shri Vivek Kumar Tripathi, counsel for respondents No. 1 to
8.
None for respondent No.9, though served.
Shri Priyanshu Gupta, P.L. for the State/respondent 10.
Arguments heard on admission.
Judgment/Order dictated in open Court. Signed and dated
separately.
Sd/-
(Sanjay S. Agrawal)
Judge
Anjani
