In this second appeal regarding ancestral property partition, the High Court allowed the appeal, held that the respondent failed to prove the 1982-83 partition, and restored the trial court decree.
Judgment and decree of the appellate court set aside; judgment and decree of the trial court restored.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF CHHATTISGARH ATBI LA S PU R
SECOND APPBAL N0. I^M OF 2004
APPELILANT fLAINTIFF
Chetanram, 8/0 Shri Lakhanram, y Aged about 43 years/R/o VillageJiratola, TahsilChhuikhadan, District Rajnandgaon, (C.G.)
VE RS U S
RESPONDENTS ,:^J. Lakhanram, S/o Late Shri DEFENDANTS DEFENDANTS ^ Jhanglu Lodhi;
^» ^ Lodhi, Aged about 30 years; ^y'l'^'it^ 3- Uttara, S/o Shri Lakhanraro '>:-'*'^$,y> V-^Lodhi, Aged about 27 years; ^^y The above named respondents are <..y>-" Agriculturist, R/o Village-Sandi, v Tahsil-Chhuikhadan, District Rajnandgaon, (C.G.) ^\ State of Chhattisgarh, Through: f8UasPut ^- The Collector, District cwV.to Rajnandgaon, (C.G.).
MBMO OF SBCOND APPEALUNDBRSECTION100OF
THE CODE OF CIVII^^ROCBDURE.1908.
VALUATION OF APPEAL Rs. 2072.40 (As valued in courts below) COURT FEE AFFIXED Rs..r208/-
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S.A.No.194 of2004
1
IN THE HIGH COURT OF CHHATTISGARH. BILASPUR
SINGLE BENCH
HON'BLE MR.T.P. SHARMA. J
SANo. 194 of 2004
Appellant Plaintiff
Chetanram s/o Shri Lakhanram
versus
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Respondents 1. Lakhanram and another. Defendants
Second Appeal under Section 100 ofthe Civil Procedure Code.
Appearance:
Mr. Rakesh Pandey, counsel for the appellant. Mr. R.N. Jha, counsel for respondents 1 to3. Mr. Roshan Dubey, Panel Lawyerforthe State/respondent No.4.
JUDGMENT (05.09.2014)
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This second appeal filed against the judgment and decree dated 07.02.2004 passed by the Additional District Judge, Khairagarh, District Rajnandgaon in Civil Appeal No.29-A/2003 reversing the judgment and decree dated 03.10.2003 passed by the Civil ,Judge CIass-1, Khairagarh in Civil Suit No.14-A/2002, has been admitted for consideration on the following substantial questions of law:
"Whether the lower appellate Court was not justifiedinholdingthatthe partitionhasalready been taken place in the year 1982-1983?"
OR
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S.A.No.194 of 2004
"Whether the finding in relation to the partition in the year 1982-1983 is perverse on the face of record?"
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By filing written statement, respondent No.1 has admitted the relationship but has specifically pleaded that appellant demanded partition then 5 acre of land including house, courtyard and kitchen-garden were given to him in the year 1982-83. The appellant was not interested to reside at village Sandi and interested to reside at village Jiratola. Therefore, at his instance,respondentNo.1 sold 3.69 acre of the land situated at village Vicharpur to minor Dashrath and Kamta on consideration of Rs.8,000/-, which was given to the appellant. Thereafter, appellant purchased the property i.e. 1.27 acres of land from Nanhv Ram in the nameof his wife Ganeshiya Bai vide Ex.D-1 on 01.07.1986, and 3.13 acres of land from Birbal in his own name on 14.05.1986 vjde Ex.D/2 on consideration of Rs.6,000/and Rs.20,000/respectively, total cost of Rs.26,000/-. The appellant, after taking Rs.5,000/-, relinquished his right upon the land area 0.69 acre vide Ex.C-1. After effecting partition in the year 1982-83, the appellant is not entitled for any partition.
S.A.No.194 of2004
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Respondent No.2 and 3 also filed written statement and have specifically admitted the defence of respondent No.1. After providing opportunity of hearing to the parties, the trial Court decreed the suit, and thelower appellate Court reversed thejudgment and decree passed by the trialCourt. Heard learned counsel for the parties, both fhe judgments & decree impugned andrecords ofthe Courts belowperused. Learned counsel for the appellant vehemently argued that the joint property was 11.79 acre situated at village Sandi, and respondents have failed to prove that total property was 16.79 acres. Respondents have furi:her faited to prove that 5 acre was given to the appellant. Learned counsel for the appellant further argued that if, at the worse defence of respondents are considered then after as Ex.D/3 and Ex.C-1, total per consideration was of Rs.13,000/-, and the property purchased by Ganeshiya, wife of appellant, and appellant vide Ex.D/1 and Ex.D/2 was of Rs.26,000/-. Respondents neither pleaded nor proved that he was having property at Vicharpur, which he has sold vide Ex.D/3. Respondent No.1 has admitted that appellant was entitled for partition. Burden was upon the respondent No.1 to prove the fact that he has given the property in partition to the appellant but respondent No.1 has failed to discharge such burden. In absence of such proof, the lower appellateCourt ought to have dismissed the appeal filed on behalf of respondents but by not dismissing the appeal, the appellate Court has committed an illegality. In absence ofany proof of partition in the year 1982-83, the civil suit ought to have decreed finally.
On the other hand, learned counsel for respondents No. 1 to 3 opposing the appeal submits that Ex.D/1 to Ex.D/5 are the documents to prove the fact that respondent No.1 has sold the
S.A.No.194 of 2004
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property vide Ex.D/3 on 27.05.1985, and within one year of such transaction, the appellant and his wife purchased property vide Ex.D/1 and Ex.D/2, which clearly and legally prove the factum of partition. He further submits that after receiving Rs.5,000/-, appellant has relinquished his right over the agricultural landarea 0.69 acre vide Ex.C/1.
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Learned Panel Lawyer for the State/respondent No.3 has fairly opposed the appeal.
Both the parties have led evidence & documents and relationship between them has not been disputed. Entitlement of appellant as 1/4th share isalso not disputed. Specific pleading has been made by the respondent No.1 that he has given 5 acre of land to the appellant in partition in theyear 1982-83, and total land was 16.79 acre butrespondent No.1 has failed to file any document to show that total land was 16.79 acre and 5 acre land was given to the appellant even otherwise Ex.P/3 and Ex.P/5 are related to only 4.58 acre of the land and not 5acre of the land. Respondent No.1 has failed to show that he was having joint property at village Vicharpur also, but virtually there is no evidence on record relating to partition between respondent No.1 and appellant in the year 1982-83 and 5 acre of the land along with house, courtyard and kitchen-garden was given to the appellant.
In absence of ?uch evidence, the substantial question of law formulated for the decision of this appeal is decided as positive, and alternate substantial question of law is also decided as positive.
Onthe basis of finding on substantial question of law, the appeal deserves to be allowed and is hereby allowed. Judgments and decree of the appellate Court are hereby set
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S.A.No.194 of2004
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aside, and judgment and decree passed by the trail Court are hereby restored.
Sd/-
T.P. Sharma
Vija^
Judge
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2 issues framed by the court
Whether the lower appellate Court was justified in holding that the partition had already taken place in the year 1982-1983?
Whether the finding in relation to the partition in the year 1982-1983 is perverse on the face of the record?
1 provisions across 1 enactments
Chetanram
Lakhanram
Uttam
Uttara
State of Chhattisgarh
T.P. Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
