Chattisgarh High Court
Ramesh Kumar Mishra vs A Smt. Tara Devi (Deleted) on 7 August, 2025
1
NAFR
REKHA
SINGH
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 157 of 2004
1 - Ramesh Kumar Mishra S/o Asharfilal Mishra Aged About 57 Years
R/o Village Chachadi, Patwari Halka No. 16, R. I. Circle Dashrangpur,
Tahsil And District Kawardha, Chhattisgarh. Presently In Government
Service And Residing At D-11/14, Chhat Imli, Bhopal, Madhya
Pradesh. ........Plaintiff., District : Bhopal, Madhya Pradesh
...Appellant/Plaintiff
versus
1 - A Smt. Tara Devi (Deleted) As Per The Hon'ble Court Order Dated 26-
11-2021
1.1 - B. Smt. Uma Devi W/o Shyamsundar Tiwari Grade-I Clerk, O/o
Upper Commissioner, Tribal Development Tribunal, Post Mukam, Rewa
Madhya Pradesh., District : Rewa, Madhya Pradesh
1.2 - 1-C. Ramkrishna Mishra (Dead) Through Lrs. Advocate, Kawardha,
Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh
1.2.1 - C (A). Smt. Sarita Mishra W/o Late Shri Ramkrishna Mishra Aged
About 65 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.2 - C. (B). Manish Mishra S/o Late Shri Ramkrishna Mishra Aged
About 45 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.3 - C. (C). Ashish Mishra S/o Late Shri Ramkrishna Mishra Aged
About 43 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.4 - C. (D). Chandresh Mishra S/o Late Shri Ramkrishna Mishra Aged
-2-
About 36 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.5 - C. (E). Askhilesh Mishra S/o Late Shri Ramkrishna Mishra Aged
About 34 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.6 - C. (F). Smt. Shraddha Mishra D/o Late Shri Ramkrishna Mishra
Aged About 40 Years R/o Pradeep Auto Parts, Near Police Station Old
Bus Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.7 - C. (G). Smriti Dwivedi D/o Late Shri Ramkrishna Mishra Aged
About 38 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
2 - State Of Chhattisgarh Through Collector Kabirdham, Chhattisgarh.,
District : Kawardha (Kabirdham), Chhattisgarh
---- Respondents
For Appellant/Plaintiff : Mr. H.B. Agrawal, Senior Advocate along
with Ms. Sandhya Rao, Advocate
For State : Ms. Shailja Shukla, Dy. G.A.
For Respondent No.1B : Ms. Anu Mishra, Advocate holding the brief
of Mr. Malay Shrivatava, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
07.08.2025
1. The appellant/plaintiff has challenged the judgment and decree
passed by the learned Additional District Judge, F.T.C., Kawardha,
in Civil Suit No.16-A/2002 dated 05.07.2004.
2. The plaintiff filed a suit for declaration of title and permanent
injunction with respect to the properties mentioned in Schedules A,
B & C of the plaint and for possession of the properties mentioned
in Schedule C with the plaint. The plaintiff pleaded that the original
defendant No.1, namely, Asharfee Lal, who was his father, had bad
habits. The entire suit property was the self-acquired property of
Pyarelal, the grandfather of the plaintiff, who died on 27.08.1978. A
Will Deed was executed by the late Pyarelal in favour of the
plaintiff and Ramkrishna, bequeathing the entire movable and
immovable properties on 29.03.1948. Late Pyarelal approached
the revenue authorities to mutate the names of the plaintiff and his
brother, namely Ramkrishna and accordingly, their names were
entered in the revenue records. The grandfather of the plaintiff
purchased a house admeasuring 35 x 35 sq ft. from one Irvu
Koshta on 30.07.1955, and another house was purchased on
18.06.1973. Both houses are detailed in Schedule C of the plaint.
The plaintiff further pleaded that the partition was effected between
the plaintiff and defendant No.1-C, namely Ramkrisha Mishra, and
they continued to cultivate the lands falling in their respective
shares since 1954. The plaintiff also pleaded that he got 54 acres
of land in partition, and Defendant No.1-C also got 54 acres. The
lands that fell in the share of the plaintiff have been mentioned in
Schedule B of the plaint. The entire property of the late Pyarelal is
described in Schedule A.
3. The plaintiff pleaded that in the year 1977-78, he had sown Pink
Gram in some part of agricultural land, which was illegally
harvested by the original defendant Asharfee Lal, and a report was
lodged with the Police Station. The plaintiff also pleaded that
Asharfee Lal had no right or interest in the suit property.
4. The original defendant filed a written statement and denied the
plaint averments. It was pleaded that the entire suit property is
ancestral property and they have an equal right in it.
5. Defendant No.1-C, namely Ramkrishna, filed a separate written
statement and denied the fact that there was any partition between
them. He further pleaded that the entire property remained in the
joint names of the plaintiff and Ramkrishna, and possession was
also joint. It was also pleaded that he had sold part of the suit
property through sale deeds dated 21.05.1978, 23.11.1987 &
04.12.1987 in favour of 11 persons.
6. Learned Trial Court framed issues and recorded a finding that the
suit property was the self-acquired property of Pyarelal; the Will
Deed dated 29.03.1948 was the last Will of the late Pyarelal; Will
Deed dated 29.3.1948 has been proved in accordance with the
law; Pyarelal was capable of executing a Will with respect to the
suit property and it would be binding on the original defendant
Asharfee Lal; the Will Deed dated 21.05.1978 has not been
proved; a partition between the plaintiff and Ramkrishna in the year
1954 has not been proved and parties were cultivating according
to the family arrangement. It was also held that it could not be
proved that the plaintiff had relinquished his claim over the suit
property after accepting gold and silver ornaments in partition.
7. Some of the issues framed by the learned Trial Court were not
decided on account of the death of the original defendant, namely
Asharfee Lal, on 10.12.1991. The plaintiff had sought the relief of
an injunction against Asharfee Lal, and some other reliefs were
also sought against him; therefore, those issues were not decided.
8. Learned Trial Court, after due appreciation of oral and
documentary evidence, dismissed the suit holding that the late
Asharfee Lal had no right over the entire suit property mentioned in
Schedule-A and the house mentioned in Schedule-C. It is further
held that defendant No.1-C, namely Ramkrishna, was not a party
to the suit, and the suit property is yet to be partitioned; therefore,
till the proceeding of the partition is completed, the parties would
follow the family arrangement. The Learned Trial Court also held
that the plaintiff had not sought the appropriate relief.
9. Learned Senior Counsel appearing for the appellant/plaintiff would
submit that the learned Trial Court has found the Will Deed dated
29.03.1948 proved as attesting witness, namely Sitaram Tiwari
(PW1), was examined, and the contents of the Will Deed were
proved. He would further submit that the learned Trial Court has
further recorded a finding that there was a family settlement
between the parties and the plaintiff as well as Ramkrishna is in
possession of their respective shares according to that
arrangement, therefore, the learned Trial Court ought to have
decreed the suit with regard to part which fell in the share of the
plaintiff as described in Schedule-B. He would contend that the
defendants could not prove the Will Deed dated 21.05.1978. He
would further contend that Asharfee Lal had no right in the suit
property, and this issue has been decided in favour of the plaintiff.
He would also contend that most of the issues have been decided
in favour of the plaintiff, even though the learned Trial Court
dismissed the Suit. He would pray to decree the suit. In support of
his contentions, he placed reliance on the judgment passed by the
Hon'ble Supreme Court in the matter of Kale and others Vs.
Deputy Director of Consolidation and others, AIR 1976 SC
807.
10.On the other hand, Ms. Mishra, Advocate, appearing for
respondent No.1B, would oppose the submissions made by Mr.
Agrawal. She would submit that the plaintiff failed to prove the
factum of partition between the parties by leading clinching
evidence. It is contended that the petitioner failed to file a suit for
partition before the learned Trial Court, and that was one of the
reasons for the dismissal of his claim. It is also contended that the
plaintiff is in possession of the lands mentioned in Schedule-B and
the house mentioned in Schedule-C on the basis of the family
settlement, and it is not necessary that he would get the right of
that part after due partition. She would contend that the learned
Trial Court has passed a well-reasoned judgment. She would also
submit that the appeal deserves to be dismissed.
11.Ms. Shukla, learned Deputy Government Advocate appearing for
the State, would support the judgment passed by the learned
Court below.
12.I have heard the learned counsel appearing for the parties and
perused the record.
13. Point for determination would be:-
(i) Whether the judgment passed by the learned Trial Court is
perverse?
(ii) Whether there was a partition between the parties or not?
14.The Hon'ble Supreme Court in the matter of Kale and others
(supra), while dealing with the issue of family settlement on the
basis of antecedent title and possession in para 10 held as under:-
"10.In other words to put the binding effect and the
essentials of a family settlement in a concretised
form, the matter may be reduced into the form of
the following propositions:
(1) The family settlement must be a bona fide one
so as to resolve family disputes and rival claims by
a fair and equitable division or allotment of
properties between the various members of the
family;
(2) The said settlement must be voluntary and
should not be induced by fraud, coercion or undue
influence:
(3) The family arrangement may be even oral in
which case no registration is necessary;
(4) It is well-settled that registration would be
necessary only if the terms of the family
arrangement are reduced into writing. Here also, a
distinction should be made between a document
containing the terms and recitals of a family
arrangement made under the document and a mere
memorandum pre pared after the family
arrangement had already been made either for the
purpose of the record or for in formation of the court
for making necessary mutation. In such a case the
memorandum itself does not create or extinguish
any rights in immovable properties and therefore
does not fall within the mischief of s. 17(2) of the
Registration Act and is, therefore, not compulsorily
registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title,
claim or interest even a possible claim in the
property 'It which is acknowledged by the parties to
the settlement. Even if one of the parties to the
settlement has no title but under the arrangement
the other party relinquishes all its claims or titles in
favour of such a person and acknowledges him to
be the sole 9 owner, then the antecedent title must
be assumed and the family arrangement will be
upheld and the Courts will find no difficulty in giving
assent to the same;
(6) Even if bona fide disputes, present or possible,
which may not involve legal claims are settled by a
bona fide family arrangement which is fair and
equitable the family arrangement is final and
binding on the parties to the settlement."
15.The party claiming enforcement of the family settlement should
prove that the family settlement is bonafide and it resolves the
family disputes and rival claims by fair and equitable division. The
settlement must be voluntary; the members of the family
arrangement must have some antecedent title, claim or interest,
even a possible claim in the property.
16.In the present case, the plaintiff has claimed the right over his
share, i.e. 54 acres of land mentioned in Schedule-B, on the basis
of the family settlement and Will Deed. The plaintiff has pleaded
that there was a partition between the plaintiff and the late
Ramkrishna in the year 1954. The plaintiff had examined Sitaram
Tiwari as PW1, who proved the execution of the Will Deed Ex.P/1.
Learned Trial Court has found the Will Deed Ex.P/1 proved and
that part has not been challenged by the defendants by filing a
cross appeal, and thus, it attained finality.
17.Ramesh Kumar Mishra (PW2) affirmed the contents made in the
plaint. In cross-examination, he remained firm.
18.Salik Ram (PW3) in cross-examination, particularly in para 12, has
admitted the fact that there was a partition between the plaintiff
and defendant No. 1C.
19.Ramkrishna examined himself as Defendant No.1. This witness
stated that the entire suit property was the self-acquired property
of late Pyarelal. He further pleaded that they had the joint
possession of the suit property, and it was never partitioned by
metes and bounds. He has claimed the right over the entire
property, including houses.
20. The plaintiff has not filed the suit for partition; rather, he has filed
suit for declaration of title, permanent injunction, and possession.
Until and unless the plaintiff proves the fact of partition on the basis
of the family settlement, he cannot claim title as well as possession
over the property. It is not proved by the plaintiff that there was a
partition by metes and bounds between the plaintiff and the late
Ramkrishna.
21. A civil suit was filed in 1979, and the plaintiff was 32 years old at
that time. The partition took place in 1954. Thus, in 1954, the
plaintiff was 7 years old; therefore, the contention made by the
plaintiff that he had cultivated his share of 54 acres since 1954
cannot be accepted. Further, the plaintiff has not pleaded the fact
that the partition between the plaintiff and Ramkrishna remained
continuing even after the death of Pyarelal (who died on
27.08.1978) and Asharafee Lal (who died on 10.12.1991).
22.The right of defendant No.1-B, namely, Uma Devi, has also not
been considered, and she has not been given her share; therefore,
on this count also, the family settlement cannot be accepted, as
there was no proper settlement between the joint title holders.
23. The Hon'ble Supreme Court in the matter of Kale and others
(supra), categorically held that though the family settlement does
not require registration, it must be a bonafide one so as to resolve
family disputes and rival claims by a fair and equitable division or
allotment of properties between the various members of the family.
The settlement needs to be voluntary and shouldn't be influenced
by fraud, coercion, or undue influence. It is necessary for the
members of the family arrangements to possess antecedent titles,
claims, or interests.
24.The plaintiff's failure to prove these essential ingredients before the
learned Trial Court led to the dismissal of the suit; thus, I do not
find the judgment passed by the learned Trial Court perverse, and
the plaintiff failed to prove the family settlement in accordance with
the law.
25.Accordingly, the appeal fails and is hereby dismissed. No cost(s).
26.A decree be drawn accordingly.
Sd/-
(Rakesh Mohan Pandey)
Judge
Rekha
