[Cites 6, Cited by 0]
Chattisgarh High Court
Omkar vs Jhumuk Died on 27 February, 2026
1
2026:CGHC:10368
Digitally
signed by
JYOTI
JYOTI SHARMA
SHARMA Date:
2026.02.28
10:41:02
NAFR
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 508 of 2017
1. Omkar S/o Jhumuk Dehare, Aged About 43 Years Occupation
Labour, R/o Village Faree, P. O. Beejabhat, P. H. No. 31, P. S.
Tahsil Districrt Bemetara Chhattisgarh., Chhattisgarh
2. Vijay, S/o Jhumuk Dehare, Aged About 41 Years Occupation
Labour, R/o Village Faree, P. O. Beejabhat, P. H. No. 31, P. S.
Tahsil Districrt Bemetara Chhattisgarh.
... Appellant(s)
versus
1. Jhumuk Died Through Legal Heirs-
1.a - Smt. Suruj Bai (Died And Deleted) As Per Honble Court Order
Dated 04-02-2026.
1.b- Smt. Kamla Bai, D/o Late Jhumuk Dahare, Aged About 62
Years W/o Shri Ubaran Chaturvedi, R/o Village Daganiya, P. O.
Devkar, Tahsil Berla, District Bemetara Chhattisgarh.
1.c- Smt. Vimla Bai, D/o Late Jhumuk Dahare, W/o Shri Ferha
Barmatwan, R/o Village Yongikhapri, P. O. Devkar, Tahsil Berla,
District Bemetara Chhattisgarh.
1.d - Smt. Satwantin Bai, D/o Late Jhumuk Dahare, Aged About 40
Years W/o Shri Chandrahas, R/o Village Sirsa, Post Deverbeeja,
Tahsil And Districrt Bemetara Chhattisgarh.
2. Kumar, S/o Late Shri Jhumuk Satnami, Aged About 50 Years
Occupation Cultivator, R/o Village Faree, P. O. Beejabhat, P. H.
No. 31, P. S. Tahsil Districrt Bemetara Chhattisgarh. , District :
2
Bemetara, Chhattisgarh
3. Dhruw Kumar, S/o Late Shri Jhumuk Satnami, Aged About 47
Years R/o Village Faree, P. O. Beejabhat, P. H. No. 31, P. S. Tahsil
Districrt Bemetara Chhattisgarh. , District : Bemetara, Chhattisgarh
4. Sanjay, S/o Shri Druw Kumar Satnami, Aged About 21 Years
Occupation Student, R/o Village Faree, P. O. Beejabhat, P. H. No.
31, P. S. Tahsil Districrt Bemetara Chhattisgarh. , District :
Bemetara, Chhattisgarh
5. State Of Chhattisgarh, The Collector, Bemetara, District
Bemetara, Chhattisgarh, District : Bemetara, Chhattisgarh
... Respondent(s)
For Appellant(s) : Mr. R.S. Patel, Advocate
For Respondent No. : Mr. Kartik Kathuria on behalf of Mr.
1b, 1c & 1d Kshitij Sharma, Advocate
For Respondent No. : Mr. Lekhram Dhruv, P.L.
5/ State
Hon'ble Shri Bibhu Datta Guru, Judge
Judgment on Board
27.02.2026
1. The plaintiffs/ appellants have preferred this second
appeal under Section 100 of the Code of Civil
Procedure, 1908 (for brevity CPC) against the judgment
& decree dated 22.06.2017 passed by the Learned
Additional District Judge, Bemetara in Civil Appeal No.
02-A/2017 (Omkar & Anr. Vs. Jhumuk & Ors.) affirming
the judgment and decree dated 12.01.2016 passed by
the Trial Court in Civil Suit No. 49A/2014 (Omkar & Anr.
Vs. Jhumuk & Ors. ) whereby the learned trial Judge
has dismissed the suit of the plaintiffs/ appellants. For
the sake of convenience, the parties would be referred
as per their status before the learned trial Court.
2. The plaintiffs preferred the present suit seeking
declaration of co-ownership, partition, possession and
permanent injunction pleading inter alia that the
plaintiffs and defendant Nos. 1 to 4 are Hindus
governed by the Mitakshara School of Hindu Law
(Banaras branch). Defendant No. 1, Jhumuk, has four
sons, namely Omkar (plaintiff No. 1), Vijay (plaintiff No.
2), Kumar (defendant No. 2), Dhruw kumar (defendant
No. 3) whereas Sanjay (defendant No. 4) is the son of
Dhruw Kumar. According to the plaintiffs, about 20
years prior to the institution of the suit, defendant No. 1
effected a partition of the suit property and allotted
shares to the plaintiffs and defendant Nos. 2 and 3.
Pursuant to the said partition, the plaintiffs received 38
decimals of "Bhata" land, which they claim to have
developed and made cultivable through their own
efforts. The suit land is stated to be ancestral property,
and after partition the plaintiffs have been in possession
and cultivating their respective shares. It is further
pleaded that defendant No. 1 had earlier sold land in
excess of his share and, with an intention to adversely
affect the plaintiffs' share, in collusion with his son
defendant No. 3 and grandson defendant No.4,
executed a registered sale deed dated 23.05.2012 in
favour of defendant No. 4 without any consideration.
The said sale deed is alleged to be not binding upon the
plaintiffs. It is also averred that the revenue records
stood in the name of defendant No. 1, who misused the
same to execute the sale deed. The cause of action is
stated to have arisen on 25.12.2012 when the plaintiffs
went to the suit land to prepare it for cultivation and
defendant Nos. 1, 3 and 4 interfered with their
possession. Thus the suit was filed.
3. Defendant Nos. 1 and 4 filed their written statement
supported by affidavit. Apart from admitting the
admitted facts, they pleaded that other family members,
namely Smt. Suraj Bai, Kamla Bai, Vimla Bai and
Satvanti Bai, have not been impleaded as parties to the
suit, and therefore the suit is bad for non-joinder of
necessary parties. It is specifically denied that
defendant No. 1, Jhumuk, had effected any partition
among his four sons or that any share of the suit land
was allotted to the plaintiffs. It is contended that
defendant No. 1 remained the exclusive owner and in
possession of the suit land. On the strength of his
ownership and possession, defendant No. 1 is stated to
have lawfully executed a registered sale deed dated
23.05.2012 in favour of his grandson, defendant No. 4,
thereby transferring the suit land. After execution of the
said sale deed, defendant No. 4 is claimed to be in
lawful possession and enjoyment of the suit property.
The defendants have alleged that the suit has been
filed on false and baseless grounds and have prayed
for dismissal of the suit.
4. Defendant No. 2 filed his written statement supported
by affidavit, admitting the entire averments made in the
plaint. He has pleaded that he is also entitled to a share
in the suit property in the same manner as the plaintiffs
and has prayed that similar relief be granted in his
favour.
5. Defendant No. 3 also filed his written statement
supported by affidavit, admitting the averments made in
the plaint. He has stated that although the suit land was
recorded in the name of defendant No. 1, Jhumuk, the
same was given to the plaintiffs and defendant Nos. 2, 3
and 4 for their maintenance and livelihood. It is further
pleaded that defendant No. 1 had earlier sold certain
family property and, out of the sale proceeds,
purchased 1 acre and 70 decimals of land, which is in
possession of the plaintiffs and defendant No. 3. The
said land is also fragmented. Defendant No. 3 has
denied any collusion with defendant Nos. 1 and 4 and
has stated that defendant No. 4 does not visit their
house. According to him, defendant No. 1 has been
maintaining and bringing up defendant No. 4 since
childhood. It is also contended that the suit land
includes additional house-site (Makan Bari) land, the
adjustment of which has not been reflected in the plaint.
On these grounds, a prayer has been made for
dismissal of the suit.
6. On the pleadings of the parties, the learned trial Judge
framed as many as 6 issues and given opportunity to
the parties to adduce evidence, both oral and
documentary and after a full fledged trial, the learned
Trial Court, held that although it stood admitted that the
suit property was ancestral in nature and that no written
document of partition existed, the plaintiffs failed to
establish the alleged partition said to have taken place
20 years earlier. The evidence on record revealed that
there was no documentary proof or independent
witness to substantiate the plea of partition, and even
the plaintiffs admitted in cross-examination that they
were cultivating the land as per a family arrangement
made by their father. The Court observed that a family
arrangement cannot be equated with a legal partition.
The trial Court further held that though defendant No. 1
(Jhumuk) admitted that the suit land was ancestral
property and that he had executed the sale deed dated
23.05.2012 in favour of defendant No. 4 without
monetary consideration, the plaintiffs failed to disclose
the complete details of the joint family properties. It was
admitted that other ancestral and joint family lands,
including 1.60 acres and additional properties standing
in the name of defendant No. 1, were not included in the
suit. In a suit for declaration and partition, it was
incumbent upon the plaintiffs to furnish complete
particulars of all joint family properties to enable proper
determination of shares. The non-joinder of the
plaintiffs' sisters and mother was also noted as a defect
affecting the maintainability of the suit. The Court held
that in the absence of clear pleadings and cogent
evidence regarding the total extent of joint family
property, it could not be determined whether defendant
No. 1 had transferred only his share or land in excess of
his share. The plaintiffs also failed to prove exclusive
possession over 1/4th share or to substantiate their
plea that the impugned sale deed was not binding upon
them. The precedents relied upon by the plaintiffs were
held to be distinguishable on facts. Consequently, the
trial Court concluded that the plaintiffs failed to prove
their entitlement to declaration of title, partition,
possession, and permanent injunction over the suit
land. Accordingly, the suit was dismissed, holding that
the plaintiffs had not succeeded in proving the issues in
their favour on the touchstone of preponderance of
probabilities.
7. Against the judgment and decree passed by the trial
Court the plaintiffs/ appellants have preferred first
appeal before the First Appellate Court which has been
dismissed vide judgment and decree impugned herein
affirming the findings of the trial Court. Aggrieved by the
judgment and decree passed by the First Appellate
Court, the present Second Appeal has been filed by the
plaintiffs.
8. Learned counsel for the appellant submits that the
Courts below have erred in law and on facts in
dismissing the suit. It is contended that the admission of
respondent No. 1 that no consideration was paid by
respondent No. 4 clearly renders the sale deed dated
23.05.2012 void and not binding, which aspect has not
been properly appreciated. It is further submitted that
partition had already taken place prior to 2004 and, in
view of the proviso to Section 6 of the Hindu Succession
Act as amended in 2005, such prior partition could not
be disturbed.
9. I have heard learned counsel for the parties, perused
the material available on record.
10. This Court finds no substance in the aforesaid
submission. The learned first appellate Court, after
independently re-appreciating the entire oral and
documentary evidence, affirmed the findings of the trial
Court. It was observed that the plaintiffs/appellants had
produced only one document, namely the registered
sale deed (Ex.P/1), and had not filed any revenue
records to establish that the suit land continued to be
recorded as joint family property or that it had fallen to
their share in the alleged partition. The Court noted that
despite claiming declaration, partition and co-ownership
in respect of immovable property, the appellants failed
to produce khasra entries, mutation records or any
documentary proof to show the nature and status of the
property. The appellate Court further recorded that the
appellants themselves admitted in cross-examination
that partition had taken place about 20 years prior and
that they were cultivating their respective shares.
However, they failed to disclose what specific lands
were allotted to them or to their father in such partition.
It was also admitted that 1.60 acres of land stood
separately recorded in their names, which was not
included in the suit. In such circumstances, the
appellants could not establish that the land sold by
defendant No. 1 formed part of their share or remained
joint property on the date of sale.
11. With regard to sale consideration, the Court held that
once partition was admitted and the land stood
recorded in the exclusive name of defendant No. 1 on
the date of sale, the adequacy or mode of payment of
consideration was not decisive. The registered sale
deed dated 23.05.2012 carried presumption of validity,
and the vendor had stated that he had sold his own
share. In absence of contrary documentary evidence,
the appellants failed to dislodge such presumption. The
non-production of relevant revenue records invited an
adverse inference under Section 114 of the Evidence
Act. The Court also noted that the appellants had not
impleaded all necessary parties, including their sisters,
despite claiming the property to be ancestral and joint.
On the overall assessment of probabilities, the
appellate Court held that the appellants failed to prove
their entitlement to declaration, partition, possession
and injunction. Consequently, the appeal under Section
96 CPC was dismissed and the judgment and decree
dated 12.01.2016 passed by the trial Court were
affirmed.
12. Even otherwise, the scope of interference in a Second
Appeal under Section 100 of the Code of Civil
Procedure is extremely limited. Interference is
permissible only when the appeal involves a substantial
question of law. Concurrent findings of fact recorded by
both the Courts cannot be interfered with unless such
findings are shown to be perverse, based on no
evidence, or contrary to settled principles of law.
13. In the present case, both the Trial Court and the First
Appellate Court have concurrently recorded findings,
on the basis of evidence available on record, that the
appellants/ defendants failed to establish their case by
placing cogent and sufficient material. The appellants
have failed to demonstrate any perversity, illegality, or
misapplication of law in the findings so recorded.
14. The questions sought to be raised in the present Second
Appeal essentially relate to re-appreciation of evidence
and challenge to concurrent findings of fact. Such
questions do not give rise to any substantial question of
law within the meaning of Section 100 of the Code of Civil
Procedure.
15. It is well established that when there is a concurrent
finding of fact, unless it is found to be perverse, the Court
should not ordinarily interfere with the said finding.
16. In the matter of State of Rajasthan and others Vs. Shiv
Dayal and another, reported in (2019) 8 SCC 637,
reiterating the settled proposition, it has been held that
when any concurrent finding of fact is assailed in second
appeal, the appellant is entitled to point out that it is bad in
law because it was recorded de hors the pleadings or
based on misreading of material documentary evidence
or it was recorded against any provision of law and lastly,
the decision is one which no Judge acting judicially could
reasonably have reached.
17. Be that as it may, the argument advanced by learned
counsel for the appellants and the proposed question of
law cannot be regarded as satisfying the test of being
'substantial question of law' within the meaning of Section
100 of CPC. These questions, in my view, are essentially
question of facts. The appellants failed to raise any
substantial question of law which is required under
Section 100 of the CPC. In any event, the Second Appeal
did not involve any substantial question of law as
contemplated under Section 100 of the CPC, no case is
made out by the appellant herein. The judgments
impugned passed by the learned trial Court as as well as
by the learned First Appellate Court are just and proper
and there is no illegality and infirmity at all.
18. Having heard learned counsel for the appellants and on
perusal of the record of the case and in view of the above
settled legal proposition, I find absolutely no merit in this
appeal, involving no question of law much less substantial
question of law within the meaning of Section 100 of the
CPC. In my view, the judgment and decree passed by
both the Courts appear to be just, proper and legal. The
findings recorded are based on proper appreciation of
evidence available on record and there is no illegality or
perversity in the same and they does not call for any
interference.
19. Consequently, the Second Appeal fails and is hereby
dismissed in limine resulting in upholding of the
judgment and decree of the trial Court as well as the
Appellate Court.
Sd/-
(Bibhu Datta Guru)
Judge
Jyoti
