Chattisgarh High Court
(Died And Deleted), Ghondul Sahu vs Bisan Sahu on 6 March, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:11165-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 24-02-2025
Judgment delivered on : 06-03-2025
FA No. 555 of 2018
1 - Ghondul Sahu, died and deleted as per Honble Court Order Dated
16-01-2024.
2 - Doman Sahu S/o Ghondul Sahu Aged About 45 Years R/o Village-
Teka, Post- Devri, P.S. Rajim, District- Gariyaband, Chhattisgarh.
3 - Minor Chatrapal S/o Shri Doman Lal Sahu Aged About 17 Years
Through Natural Guardian Father Namely Doman Lal S/o Ghondul
Sahu, R/o Village- Teka, Post- Devri, P.S.- Rajim, District- Gariyaband,
Chhattisgarh.
4 - Smt. Geeta Bai W/o Shri Doman Lal Sahu Aged About 36 Years R/o
Village Teka, Post-Devri, P.S.-Rajim, District-Gariyaband, Chhattisgarh.
5 - Bhanupratap Sahu S/o Shri Ghondul Sahu, R/o Village- Teka, Post-
Devri, P.S.- Rajim, District- Gariyaband, Chhattisgarh,.......(Defendants)
... Appellants/defendants
versus
1 - Bisan Sahu S/o Shri Ghondul Sahu Aged About 40 Years R/o
Village-Teka, Post-Devri, P.S.-Rajim, District-Gariyaband,
2
Chhattisgrah.,...(Plaintiff)
2 - State Of Chhattisgarh Through The Collector Gariyaband, District-
Gariyaband, Chhattisgarh. (Defendant No.6)
... Respondents
For Appellants : Mr. Vivek Tripathi, Advocate.
For Respondent No.1 : Mr. Shreshta Gupta, Advocate.
For Respondent/State : Ms. Nand Kumari Kashyap, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey &
Hon'ble Shri Justice Sachin Singh Rajput, JJ
C A V Judgment
Per Rajani Dubey, J
Challenge in this appeal under Section 96 of Code of Civil
Procedure is to the legality and validity of the judgment and decree
dated 10.8.2018 passed by the Additional District Judge, Gariyaband in
Civil Suit No.26A/2015 whereby the suit of the plaintiff has been
allowed. (Parties shall hereinafter be referred to as per their description
before the trial court.)
02. The admitted facts in this case are that Defendant No.1 Ghondul
Sahu is son of Mukundi Sahu. Plaintiff Bisan Sahu, defendant No.2
Doman Sahu and defendant No.5 Bhanupratap Sahu are sons of
defendant No.1 whereas minor defendant No.3 Chhatrapal is son of
defendant No.2 Doman Lal Sahu and defendant No.4 Smt. Geeta bai
is wife of defendant No.2. Defendant No.1 Ghondul has only 0.55
hectare of agricultural ancestral land of Khasra No.1670 situate at
Village-Teka. On 13.5.2015 defendant No.1 Ghondul sold 0.360
hectare of land bearing Khasra No.291 situate at Village-Loharsi in
favour of defendant No.2 Doman Sahu through registered sale deed
for a consideration of Rs.9,51,300/-. On the same day, defendant No.1
also executed a registered sale deed in favour of defendant No.5
Bhanupratap Sahu in respect of land bearing Khasra No.265, area
0.270 hectare situate at Village-Loharshi for a sale consideration of
Rs.7,13,500/-. Further, on 28.9.2015 defendant No.1 sold land bearing
P.H.No.17/33, khasra No.1671/2, area 0.14 hectare and Khasra
No.1670, area 0.550 hectare situate at Village-Teka for a sale
consideration of Rs.12,22,500/- to defendant no.3 Chhatrapal through
registered sale deed.
03. Case of the plaintiff, in brief, is that the plaintiff and defendants
No. 1 to 5 are members of the same family. Name of defendant No.1
has been recorded as owner of the ancestral property which is in fact
the ancestral property of the plaintiff and defendants No. 1, 2 & 5 and
as such, they all have equal 1/4 share in the said property. However,
on the influence of defendants No. 2 & 5, father of the plaintiff i.e.
defendant No.1 would not take care of him and even after marriage, he
was separated from the family members and hence he started living
separately and was maintaining his family somehow. In the year 2014-
15 when the plaintiff claimed his share in the ancestral property, it was
refused by defendant No.1. A social meeting was also held in this
regard where looking to the act of the defendants No.1, 2 & 5 they
were ostracized by the society. Being aggrieved, they prepared
registered sale deeds on 13.5.2015 worth Rs.9,51,300/- in favour of
defendant No.2 and another sale deed in favour of defendant No.5
worth Rs.7,13,500/- and on 28.9.2015 also prepared a registered sale
deed whereby certain lands were sold in favour of defendant No.3.
These sale deeds were executed with a view to grab share of the
plaintiff. Based on these sale deeds, names of defendant No.2 Domal
Sahu and defendant No.5 Bhanupratap Sahu were recorded in the
revenue records in respect of land situate at Village-Loharsi but the
name of minor defendant No.3 Chhatrapal has not been recorded in
respect of land situate at Village-Teka sold to him. The plaintiff had
raised objections at the time of mutation on the basis of these sale
deeds. Hence he filed a suit for declaration that all these three sale
deeds are illegal and void, not binding on him, he is entitled for 1/4
share in the suit property, defendants No. 1 to 5 be permanently
injuncted from selling, transferring, alienating or mortgaging the suit
property in any manner till conclusion of the partition proceedings and
he be also granted mesne profit @ Rs.1 lac per annum from the date
of filing of suit till the date of partition from defendants No. 1 to 5.
04. Defendants No.1 to 5 in their written statement denying all the
adverse averments contended that the entire suit land is not the
ancestral property. In fact, the only ancestral agricultural land is bearing
Khasra No.1670, area 0.55 hectare situate at Village-Teka. So far as
remaining lands are concerned, the same are the self-acquired
property of defendant No.1. The plaintiff was married around 15 years
back by defendant No.1 and since he was raising disputes and
disturbing peace of the family, he was given a separate house to live in
where the plaintiff is still residing. Defendants No. 2 & 5 have duly got a
house constructed on their own cost and are residing along with their
family members. Defendant No.1 is also residing alongwith his wife in
the said house. As defendant No.1 and his wife Janibai were in need of
money for medical treatment as also for repaying the loan, they
discussed about sale of ancestral agricultural land bearing Khasra
No.1670, area 0.550 hectare situate at Village-Teka to someone else,
on which defendant No.2 Doman Sahu expressed his willingness to
purchase the same and therefore, defendant No.1 sold the said land to
him after obtaining full consideration thereof. The remaining land at
Villages-Loharsi and Teka bearing Khasra Nos. 265, 291, 1671/2 is the
self-acquired property of defendant No.1 Ghondul Ram and as such,
the plaintiffs have no right to question transfer or sale thereof.
Therefore, the suit is liable to be dismissed with cost.
05. Learned trial Court on the basis of pleadings of the respective
parties framed as many as 08 issues and after appreciation of oral and
documentary evidence on record, decreed the suit by the impugned
judgment and decree dated 10.8.2018. Hence this appeal by the
defendants.
06. Learned counsel for the appellants/defendants would submit that
the learned trial Court wrongly held that the suit property is the
ancestral property whereas except land bearing Khasra No.1670, area
0.55 hectare, the other lands are self-acquired property of defendant
No.1 and it has been duly proved, however, learned trial Court wrongly
held that the other property was also purchased from the money of
joint holding property which is totally contrary to the oral and
documentary evidence. The plaintiff has nowhere stated in the plaint
that his father-defendant No.1 purchased the said property from the
money derived from ancestral property. The findings recorded by
learned trial Court declaring the sale deeds in question as null and void
are totally contrary to the provisions of law and the evidence available
on record. The plaintiff in his plaint has nowhere stated about the three
registered sale deed by which defendant No.1 purchased the land.
Learned trial Court acted with material irregularities and contrary to the
evidence on record. Therefore, the impugned judgment and decree are
liable to be set aside.
07. Learned counsel for the respondent no.1/plaintiff supporting the
impugned judgment and decree would submit that the learned trial
court upon proper appreciation of oral and documentary evidence has
decreed the suit of the plaintiff which warrants no interference by this
Court.
Reliance has been placed on the order dated 18.1.2023 passed
by Division Bench of this Court in FA No.18/2019 in the matter of
Vaman Sharma and others Vs. Smt. Namita Baidhmutha and
others.
08. Learned counsel for respondent No.2/State would submit that
from bare perusal of the pleadings and documents annexed thereto
and the impugned judgment and decree, it would be evident that
dispute is between the appellants/defendants and respondent
No.1/plaintiff and there is no cause of action against respondent
No.2/State which is a formal party. No substantial and effective relief
has been sought by the appellants against respondent No.2.
09. Heard learned counsel for the parties and perused the material
available on record.
10. On the basis of pleadings of the respective parties, learned trial
Court framed eight issues and main issues are Issue Nos. 1, 2, 3 & 4
which are as under:
dz ० वाद प्रश्न निष्कर्ष
1. क्या ग्राम लोहरसी पटवारी हल्का नंबर 16 "हाँ"
रा०नि०सं० राजिम, तहसील राजिम, जिला-
गरियाबंद स्थित कृ षि भूमि ख 0 नं0 265, रकबा
0.270 हे०, ख 0 नं0 291 रकबा 0.360 हे0, कु ल
खसरा 2, रकबा 0.630 हे० भूमि वादी एवं प्रतिवादी
कमांक 1, 2, और 5 की पैतृक संपत्ति है?
2. क्या ग्राम टेका प०ह०नं० 17, रा०नि०म० राजिम, "हाँ"
तहसील राजिम जिला गरियाबंद स्थित कृ षि भूमि
ख०नं० 1670, रकबा 0.550 हे० ख०नं० 1671/2
रकबा 0.140 हे० कु ल खसरा 2. रकबा 0.690 हे०
भूमि वादी एवं प्रतिवादी कमांक 1, 2 और 5 की
पैतृक संपत्ति है?
3. क्या ग्राम टेका प०ह०नं० 17. रा०नि०मं० राजिम, "प्रमाणित नहीं"
तहसील राजिम जिला-गरियाबंद स्थित आबादी भूमि
ख 0 नं0 1412 रकबा 0.020 हे० पर बना मकान व
ब्यारा जिसे संलग्न वाद नक्शे में लाल रंग से घेरकर
दर्शाया गया है वादी एवं प्रतिवादी 1, 2 एवं 5 की
पैतृक संपत्ति है ?
4. क्या वादी का उक्त पैतृक संपत्ति पर 1/4 भाग हक व "हाँ"
अधिकार है ?
11. The main objection of the appellants/defendants is that the
plaintiff has nowhere pleaded about three registered sale deeds by
which defendant No.1 purchased the land and therefore, the findings of
learned trial Court are erroneous and contrary to the settled principle of
law. Learned counsel for the appellants would contend that the
impugned judgment and decree are not based on proper appreciation
of oral and documentary evidence on record and as such, are liable to
be set aside.
It is clear from the statement of appellant/defendant No.1
Ghondul Sahu (DW-1) that he admitted that Mukundi Sahu was his
father, his land was situated at Village-Teka, after death of his father,
the land was recorded in his name which is being cultivated by his
sons and himself. He also admitted that he is living jointly with all of his
sons. He also admitted that when he purchased land from Goverdhan
and Chintaram, at that time his sons were living with him in a joint
family. He also admitted that except agricultural income, he had no
other source of income.
12. Learned trial court minutely appreciated the oral and
documentary evidence of both the parties, especially considered the
admission of appellant/defendant No.1 Ghondul Sahu, father of the
plaintiff and other defendants, who admitted that all lands belong to his
father and after death of his father, his name was recorded in respect
of that property in the revenue records, they are living jointly and from
agricultural income he purchased other lands in name of his sons.
Learned trial Court decided Issues no. 1 & 2 in favour of the plaintiff
holding that the suit property is ancestral property and accordingly
while deciding Issue No.4 held that the plaintiff has 1/4th share over
the said ancestral property.
13. This Court in the matter of Vaman Sharma (supra) after
observing guidelines of the Hon'ble Supreme Court on the subject
matter, held in paras 17, 18 & 19 of its order as under:
"17. Perusal of the sale deed in the context when
compared to the principle laid down in the Hindu law do not
synchronize or match to insulate that the sale was for legal
necessity. In a result, when the sale deed appears to be for
a personal need which envelop the share of the
coparcenrs, the same cannot be sustained as a whole.
18. It would be apt to say that sale deed though was
executed by taking into the sweep share of the
coparceners, the seller also had a vested right to the
extend of 1/4th share. If the sale is executed in excess of
the power to transfer, a distinction can be drawn in
between void and voidable sale as it cannot be stated that
defendant No.2, since deceased, had no right to sell his
part of the property. The Hon'ble Supreme Court in the
matter of Murugan Vs. Kesava Gounder (dead) through
legal representatives (2019) 20 SCC 633 has followed
the principle and quoted excerpts of Salmonds on
Jurisprudence, 12" Edn.. at Para 15 which reads as thus:
15. Salmonds on jurisprudence, 12 Edn., has noticed
the distinction between valid, void and voidable in the
following passage:
....... A valid agreement is one which is fully
operative in accordance with the intent of parties.
A void agreement is one which entirely fails to
receive legal recognition or santion, the declared
will of the parties being wholly destitute of legal
efficacy. A voidable agreement stands midway
between these two cases. It is not a nullity, but its
operation is conditional and not absolute."
Therefore, a distinction can be made where a document is
wholly or partially invalid so that it can be disregarded by
the Court or authority, Consequently, the principle followed
by the Supreme court in the matter of Gorakh Nath Dube
v. Hari Narain Singh (1973) 2 SCC 535, an alienation
made by defendant No.2 in excess of the power to transfer
would be, to the extent to the power would be invalid. In a
result, the sale deed dated 11.7.2013. (Ex-P/1) in excess of
1/4th share in the property sold would stand invalid.
19. With respect to declaration and injunction, in view of
the foregoing discussion above, we hold that the plaintiffs
are entitled to protect their rights which is accrued to them
by way of coparceners in the joint family property.
Accordingly, we are inclined to pass the decree in favour of
the plaintiffs to the above extent and also pass an order of
injunction that with respect to the share of the property held
by the plaintiffs, the defendant No.1 or her agent shall be
restrained to interfere or disturb the possession of
plaintiffs."
14. In light of above, in the present case also, respondent
No.1/plaintiff proved the fact that the property in question belongs to his
grand-father and appellant/defendant No.1 also admitted the fact that
suit property belongs to his father and after his death, his name was
recorded and he along with his sons were jointly cultivating the said
land and from the agricultural income he purchased the other
properties. The findings recorded by learned trial Court are based on
proper appreciation of oral and documentary evidence. This Court finds
no illegality or infirmity in it warranting any interference. Thus, the
impugned judgment and decree are affirmed.
15. In the result, the appeal being devoid of any substance is hereby
dismissed. Let a decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Sachin Singh Rajput)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
