Kalipad Sana vs Hajari Lal Sana
2023 Latest Caselaw 609 Chatt

                                            1

                                                                               NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                                  SA No. 742 of 2019

           Kalipad Sana S/o Sarveshwar Sana Aged About 58 Years R/o
           Subhashnagar, Tahsil Ambikapur, District Surguja, Chhattisgarh, District :
           Surguja (Ambikapur), Chhattisgarh

                                                               ---- Appellant/Plaintiff

                                         Versus

        1. Hajari Lal Sana S/o Jaichandra Aged About 59 Years R/o Subhashnagar,
           Tahsil Ambikapur, District Surguja, Chhattisgarh ..... (Defendant No. 1),
           District : Surguja (Ambikapur), Chhattisgarh

        2. State Of Chhattisgarh Through Collector, Surguja, Ambikapur, District
           Surguja, Chhattisgarh ........... (Defendant No. 2), District : Surguja
           (Ambikapur), Chhattisgarh

                                                                    ---- Respondents

(Cause title taken from CIS)

For Appellant :Shri Anurag Singh, Advocate.

For Respondent 2/State :Shri Sanjeev Kumar Agrawal, P.L.

Hon'ble Shri Justice Sanjay S. Agrawal

Judgment/Order On Board 31.01.2023

Heard on admission.

1. This appeal has been preferred by the plaintiff under Section 100 of the

Code of Civil Procedure, 1908, questioning the legality and propriety of the

judgment and decree dated 28.08.2019 passed by the 7 th Additional District

Judge, Ambikapur, District Surguja (C.G.) in Civil Appeal No.35-A/2017, whereby,

the learned appellate Court, while affirming the judgment and decree dated

17.10.2017 passed by the 5th Civil Judge, Class-2, Ambikapur, District Surguja in

Civil Suit No.11-A/2014, 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 the

plaintiff - Kalipad instituted a suit claiming declaration of title and injunction with

regard to the property in question bearing Kh.No.263/2 admeasuring 1.10

hectares situated at village Subhash Nagar, Tahsil Ambikapur, District Surguja.

According to the plaintiff, the said property along with others were provided to his

father Sarveshwar Sana under the Displaced Persons (Compensation and

Rehabilitation) Act, 1954 (hereinafter referred to as the Act, 1954) as he migrated

from East Pakistan to India and upon his death, the revenue papers were

recorded in his name. Further contention of him is that when he was cultivating

the land in the year 2011, defendant No.1-Hajarilal started interfering in his

peaceful possession while claiming his ownership over it and, therefore, he

enquired the revenue papers in the year 2011-12, whereby it was revealed to him

that the name of said defendant is recorded in revenue papers with regard to the

property in question, i.e., Kh.No. 263/2 admeasuring 1.10 hectares. It is pleaded

further that since said defendant was not his relative and as the property was

earlier allotted to his father, therefore, without any authority, he obtained the

revenue papers fraudulently and, therefore, no right or title as such would confer

upon him.

3. It is pleaded further by the plaintiff that the Bhumiswami right of the

properties which were earlier allotted to his father including the suit land was

subsequently given to him by the Tahsildar, Ambikapur vide its order dated

25.01.1999 and since the name of said defendant was illegally recorded therein

along with him, therefore, a review petition was filed by him before the said

revenue authority, however, on the basis of forged deed of compromise, it was

dismissed vide order dated 07.03.2012 and was affirmed further by the Sub-

Divisional Officer (Revenue), Ambikapur vide its order dated 16.12.2013.

Therefore, he has been constrained to institute the suit in the instant nature for his

exclusive ownership of the property in question, i.e., Kh.No.263/2 admeasuring

1.10 hectares situated at village Subhash Nagar, Tahsil Ambikapur, District

Surguja.

4. While contesting the aforesaid claim, it was stated by defendant No.1 in his

written statement that being an elder member of the family, the property in

question along with other lands were settled in the name of said Sarveshwar

Sana, the plaintiff's father at the time when they migrated from East Pakistan to

India under the said Act of 1954 as he was minor and his mother, namely,

Purnima, who was the real sister of the plaintiff's father, also came along with him.

It is, therefore, pleaded further while producing a copy of order dated 25.01.1999

as passed by Tahsildar, Ambikapur that after the death of plaintiff's father, the

Bhumiswami right of the property in question was provided in their joint names by

the said authority in Revenue Case No.108-A-19/1998-99 and thereafter in

partition, the property in question, i.e., Kh.No.263/2 admeasuring 1.10 hectares

came in his share and since then he is in possession while constructing a house

over it and is residing along with his family members. It is pleaded further that the

order as passed by the Tahsildar, Ambikapur on 25.01.1999 was questioned by

him in Review Petition after passing of the considerable period of 10 years before

the said authority where both the parties have arrived at a compromise and based

upon the compromise, the said Petition was dismissed by Tahsildar, Ambikapur

vide order dated 07.03.2012 and, which has been affirmed further by the Sub-

Divisional Officer vide its order dated 16.12.2013 in appeal preferred by the

plaintiff. The claim of the plaintiff, therefore, deserves to be dismissed.

5. From perusal of the record, it appears that Kh.Nos.273/21, 273/22 and

273/34 admeasuring 0.47 hectares, 3.53 hectares and 3.00 hectares total

admeasuring 7.00 hectares are shown to be recorded in the name of one

Sarveshwar Sana, the plaintiff's father, as evidenced by Survey List, marked as

Ex.P.2 and, it appears that at the time of settlement, the same were renumbered

as Kh.Nos.255, 256 and 263 admeasuring 0.05 hectares, 0.10 hectares and 2.68

hectares respectively. It appears further that vide order dated 25.01.1999

(Ex.D.2), Bhumiswami right was provided to the plaintiff - Kalipad Sana and

others by the Tahsildar, Ambikapur, District Surguja and it was shown to be

recorded in joint names of the plaintiff - Kalipad and Hajarilal, defendant No.1,

who is the son of Smt. Purnima Sana, the real sister of plaintiff's father-

Sarveshwar Sana. According to the plaintiff, the Bhumiswami right with regard to

the said properties were given to him alone by the said order dated 25.01.1999

but defendant No.1, without any authority, has illegally succeeded to get his name

recorded there along with him, and this fact came to his knowledge when he

enquired the revenue papers in the year 2011, and therefore, he moved a Review

Petition before the said authority as per the provisions prescribed under Section

51 of the Chhattisgarh Land Revenue Code, 1959 (in short, the Code of 1959). It,

however, appears that the said Review Petition was filed by him only on

20.10.2010 (Ex.D.10) after passing of the considerable period of more than 10

years from the passing of the said order, dated 25.01.1999 (Ex.D.2). It appears

further that during the pendency of the said review proceedings, both the parties

have arrived at compromise and, based upon it, an application was made by the

plaintiff before the said authority vide Ex.D.3 and prays for the closure of the same

and that by considering the same, it was closed vide order dated 07.03.2012

(Ex.D.9). It, however, appears from the averments made in the plaint, that since

the alleged compromise was a forged document, an appeal was, therefore,

preferred by the plaintiff before the Sub-Divisional Officer (Revenue) Ambikapur.

But, the said appeal was, however, found to be dismissed vide order dated

16.12.2013 (Ex.P.2) in Revenue Case No.390/B-121/2013-2014 and, which has

attained its finality by efflux of time. Although it was pleaded by the plaintiff that

his signature is not there and the alleged compromise (Ex.D.17) has been

obtained fraudulently, however, a bare perusal of the application filed by him vide

Ex.D.3, vis-a-vis, the document known as "Samjhauta Nama" (Ex.D.17), it

appears that his signature is not only reflected from those documents, but were

found to be duly corroborated by its attesting witnesses (D.W.2 and D.W.3). That

apart, no effort was made by the plaintiff for verification of his said signature by

way of examining the hand writing expert in order to prove the alleged "Samjhauta

Nama" to be a fraudulent one, though the burden was upon him to prove the

same as such. The alleged "Samjhauta Nama" (Ex.D.17) is an unregistered

document, therefore, learned counsel appearing for the appellant has submitted

that it is inadmissible in evidence and no reliance could be placed upon such an

inadmissible evidence and in support of his contention has placed his reliance

upon the decision rendered by the Supreme Court in the matter of Yellapu Uma

Maheswari and Another v. Buddha Jagadheeswararao and Others reported in

(2015) 16 SCC 787. The principles laid down in the said matter are, however,

distinguishable from the facts involved herein, as in the said matter, two

documents, i.e., a deed of "agreement" and a "memorandum", both were found to

be a deed of relinquishment upon its close scrutiny and which are, therefore,

required to be registered compulsorily under Section 17 of the Indian Registration

Act, 1908. However, in the instant matter, a bare perusal of the recitals made in

the alleged "Samjhauta Nama", it is difficult to hold that the plaintiff has

relinquished his interest over the property in question in any manner. As such it

cannot be treated to be a deed of relinquishment. In any case, the plaintiff himself

has moved an application (Ex.D.3) for the closure of the said review petition

based upon the alleged compromise and, after considering the same, the said

review petition was not only closed vide order dated 07.03.2012 (Ex.D.9), but has

been affirmed further by the Sub-Divisional Officer (Revenue), Ambikapur vide its

order dated 16.12.2013 (Ex.P.2) and which has been found to be attained its

finality by efflux of time.

6. Pertinently to be noted here further that instead of questioning the

aforesaid orders as passed by the Revenue Authorities, the claim has been made

with regard to the exclusive ownership over the property in question, i.e., bearing

Kh.No.263/2 admeasuring 1.10 hectares of land. However, from perusal of the

evidence led by the parties, as observed herein above, it is difficult to hold that the

alleged Bhumiswami right was granted to the plaintiff alone and/or would be

entitled to be declared the exclusive owner of it, as claimed by him.

Consequently, I do not find any infirmity in the impugned judgment and decree,

so as to call for any interference in this appeal.

7. In view of above, I do not find any question of law, much less the

substantial questions of law, which arise for determination in this appeal. 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.742 of 2019 Kalipad Sana Vs. Smt. Hajari Lal Sana & Anr.

31.01.2023 Shri Anurag Singh, counsel for the appellant.

Shri Sanjeev Kumar Agrawal, P.L. for the State/respondent.

Arguments heard on admission.

Judgment/Order dictated in open Court. Signed and dated

separately.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani