Allowed

Mahesh Rawat and Others v. Rudra Prasad Yadav and Others

Chhattisgarh HC5 Sept 2014SA/222/2004

Case brief

AI extract

What is this about?

The High Court allowed the second appeal. It held that complete disappearance of possession proving partition cannot be established by a merely unregistered and unstamped agreement for partition. Consequently, the lower appellate court erred in relying on such a document and reversed the trial suit.

What did the court decide?

The appeal was allowed; the judgment and decree of the lower appellate court were set aside; and the judgment and decree of the trial court were restored.

Mahesh Rawat and Others Vs Rudra Prasad Yadav and Others — Partition | Chhattisgarh HC (2014)

s.\f^

sinale Qench

BEFORE THB HON'BLE HICrH COURT OF CHHATTISGARH. JUDICATURE AT BILASPUR

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IN THE MATTER OF S.A.NO. ^^ /2004

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Mahesh, son of Shri Shyam Sunder Rawat, aged about 35 years,

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Jogilal, son of Shri Shyamsundar Rawat, aged about 30 years.

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/3. Bhogilal, son of Shri Shyam Sunder Rawat, aged about 32 years,

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Gokul, son of Shri Madhusudan Rawat, aged about 27 years,

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.. Appellant No.l to 4 are agriculturist, residents of .(^.^village - Samkera, Tah. Gharghoda, Distt. Raigarh (Chhattisgarh)

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.. .(^.^village - Samkera, Tah. Gharghoda, Distt. Raigarh ^ 0^-' ^K/ (Chhattisgarh) -•" ^v - ^ </ci?'$;N:'v^ema Bai, daug:;hter of Late Madhusudan Rawat, wife '///^~/y /^ :^s oi Shri Mandal Yadav, aged about 30 years (since dead) through her L.R.'s:-

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.O* t,'<^'.-' ^-'J,.^;?'' 5>1 / Kuntl Bai' Daughter of Mandal yadav, aged about 10 years (Minor) ^ 5.2 Baidehi, daughter of Mandal Yadav, aged about 9 years (minor)

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Appellant No. 5.1 85 5.2 are minors, through : their natural guardian fafher : Mandal Yadav, aged about . -^!' 40 years resident of viUage - Godhi, P.S. Tamnar, y^p^ Tah. Gharghoda, Distt. Raigarh)

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6;"' '"Nanki, Daughter of Late Madhusudan Rawat, aged about 28 years, wife of Shri Khairpuriha, occupation - agriculturist, resident of village Khairpur, Tah. an^ Distt. Raigarh (Chhattisgarh)

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7, Puni Bai, daughter of Late Madhu Sudan Rawat, ,,'' aged about 25 years, wife of Shri Hardijhariya, agriculturist, resident of village - Hardijhariya, Tah. Gharghoda, Distt. Raigarh.

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Kumari Bai, daughter of Late Madhusudan Rawat, aged about 25 years, agriculturist, resident ofvillage - Samkera, Tah. Gharghoda, Distt. Raigarh (C.G.)

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APPELLANTS/PLAINTIFFS

VBRSUS

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I i

^ 1. Rudra F'rasad, son of Dhanurjai Yadav, aged about 45 years, .^>2Mohan son of Dhaniujay yadav, aged about 50 years, Kotarbagheen alias sushila, widow of Dhanurjai, ^ ^ ^ aged about 60 years,

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Degreelal, son ofDhanurjai Yadav, aged about 30;} ^> years,

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Respondent No. 1 to 4 are agriculturist, residerit of village - Samkera, Tah. Gharghoda, Distt. Raigarh (Chhattisgarh). ^^5. Smt JanaJd Bai wtfe of Etwaar Yadav, aged about 32 years, resident of - Kachkowa, Tah. Gharghoda, Distt. Raigarh. Tularam son of Shri Shyam Sunder Rawat, aged ^- about 50 years, occupation - agriculti-u-ist, resident of village - Samkera, Tah. Gharghoda, Distt. Raigarh (C.G.) fAPPELLANT OF CU^IL APPEAL N0. 17A/2002). 7. Sahdeo, son of Shri Kirtan Rawat, aged about 70 7' years, ^^Urkuli widow of Late Chintamani, aged about 50 years, (L^. Trilochan, aged about 25 years, son of Shri ^ ChintamaniRawat, Respondent No. 7 to 9 are agrici.ilturist, Resident of Samkera, Tah. Gharghoda, Distt. Raigarh (C.G.) ^: 10. Mu. Dropadi, wife of Shri Shaukilal, Dj/o. Chintamani, aged about 40 years, oecupatic^ii -

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agriculturist, resident of Samkera, Jhankadarha, Tah. Gharghoda, Distt. Raigarh (CG)

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Jaamla, son of Shri Chintamani (Deleated)

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J^. Nanhi son of Shri Chintamani, aged about 19 years, occupation - agriculturist, resident of - Samkera, Tah. Gharghoda, Distt. Raigarh (Chhattisgarh)

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.3. Rukanee, wife of Shri Ratan Rawat, D/o. /^ Chintamani, aged about 30 years, occupation - agriculturist, resident of BhathnaU, Tah. Kharsiya, Distt. Raigarh (C.G.) Mu. Munu, wtfe of Shri Bhuruwa Rawat, D/o.

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^14, Chintamani, aged about 27 years, occupation^- agriculturist, resident of village I- Salhepali, Tah. Kharsiya, Distt. Raigarh (C.G.)

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^J.5.^ MU. Meera Bai, wife of Salhepaliha, D/o. / Chintamani, aged about 25 years, occupation - . agriculturist, resident of - Salhepali, Tah. Kharsia, Distt. Raigarh (Chhattisgarh)

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^' 6. Mu. Daani alias Nankibai, wife of Minketan, D/o. / Chintamani, aged about 27 years, resident of viUage - Godhi, Tah. Gharghoda, Distt. Raigarh (Chhattisgarh)

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^ (^17. Mi.inna, son of Shri Chintamani, aged about 58 / years, occupation - agriculturist, resident of vUlage - Samkera, Tah. Gharghoda, Distt. Raigarh (Chhattisgarh)

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1. State of Chhattisgarh, through : District Collector, Distt. Raigarh (Chhattisgarh) RESPONDENTS/DEFENDANTS

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SECOND APPEAL UNDER SECTION l68 OF THECIWIL PROCEDURBCODE.

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HIGH COURT OF CHHATTTSGARH AT BILASPUR

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Sinqle Bench:

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Hon'ble Shri Justice T.P. Sharma

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Second Appeal No. 222/2004

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APPELLANTS		1.	Mahesh
Plaintiffs		2.	Jogilal
		3. 4.	Bhogilal Sokul
		5.	(1) Kunti Bai (2) Baidehi
		6.	Nanki
		7.	Puni Bai
		8.	Kumari Bai
	Vs
RESPONDENTS		1.	Rudra Prasad
Defendants		2.	Mohan
		3.	KotarbaQheen alias Sushila
		4.	Degreelctl
		5.	Smt. Jcnki Bai
		6.	Tularam
		7.	Sahdeo
		8.	Urkuli
		9.	Trilochan
		10.	Mu. Dropadi
		11.	Jaamla
		12.	Nanhi
		13	.Rukanee
		14.	Mu. Munnu '
		15.	Mu. Meera Bai
		16	.Mu. Daani alias Nankibai
		17.	Munna
		18.	State of Chhattisgarh

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Present:

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Mr. Roop Naik, Advocate for the appellants.

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Mr. K.N. Nande, Advocate for respondent No.l to 5.

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Mr. Saurabh Sharma, Advocate for the respondents No.8 to 10 <& 12 to 17. Mr. R. Dubey, P.L. for the respondent No.lS/State.

JUD6MENT

:1 Ell s 1

(5.9.2014)

This second appeal filed on behalf of the appellants against the judgment & decree dated 24.2.2004 passed by the 2nd Additional District Judge, Raigarh in Civil Appeal Nos.l7-A/2002 & 27-A/2002 reversing the judgment & decree dated 26.6.2001 passed by the Civil

Page 2 of4

S.A. No.222/2004

Judge Class-11, Sharghoda in Civil Suit No.36-A/92, has been admitted for consideration on the following substantial question of law;-

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Whether the findings of lower appellate Court in reversing the finding of the trial Court was proper or not particularly the finding in respect of Annexure t)/l which was disbelieved

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by the trial Court?

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As per pleadings of the parties, both the parties belonged to common ancestors and they are entitled for their respective shares in the property. The appellants have filed suit ror declaration, partition and possession of the properties shown in Schedule 'A & B' which was substantially objected by the defendants/respondents No.l to 5 on the ground that family partition took place in the year 1960 vide Ex.D-1 dated 23.4.1960.

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After providing opportunity of hearing to the panties, the trial Court decreed the suit and the lower appellate Court reversed the judgment and decree of the trial Court.

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Heard learned counsel for the parties and perused the judgments <& decree and record of the Courts below.

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Learned counsel for the appellants vehemently argued that Ex.D-l clearly discloses that after separating some lands, partition between the parties has been effected i.e. Ex.b-1 is a deed of partition and not an agreement for partition, therefore, the aforesaid deed of agreement was to be compulsorily registered under Section 17 (1) (b) of the Registration Act, 1908 but it was insufficiently stamped and unregistered document. In the light of dictum of the Supreme Court in the matter of Siromani vs. Hemkumar & others , the document of Ex.D-1 is not admissible in evidence and by admitting and relying upon the same, the lower appellate Court has committed illegality. The property was not partitioned therefore they are entitled for partition as per their share.

' AIR 1968 SC 1299

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S.A. No.222/2004

On the other hand, learned counsel for the respondents No.l to 5 opposed the appeal and submits that Ex.b-1 is the agreement of partition and thereby partition has been effected, therefore, the appellants cannot reopen the partition which has already perfected and the lower appellate Court has ri9htly allowed the appeal and dismissed the suit.

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Learned counsel for the respondents No.8 to 10 <& 12 to 17 submits that there was no partition, therefore, the lower appellate Court ought to have dismissed the appeal instead of reversing the well-reasoned judgment of the trial Court.

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At the outset, as per wordings of Ex.D-1, share of the parties have been declared, however, it did not reflect that which property was given in partition to whom, but the fact remains that it was a deed of partition, therefore, it ought to have been sufficiently stamped and registered under Section 77 (1) (b) of the Registration Act, 1908 and as held in the case of Siromani (supra) and in the light of Section 35 of the Indian Stamps Act, 1899, a document is not admissible in evidence for any purpose by any person having by law or consent of parties authority of receive evidence i.e. unregistered and unstamped document, is inadmissible in evidence. Therefore, by placing reliance upon the document of Ex.D-1, the lower appellate Court has committed illegality.

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Even otherwise, for the sake of consideration only, if it is considered that EX.&-I is admissible in evidence then even Ex.D-1 by itself is not sufficient to prove the factum of partition. As per Ex.D-1, the parties are required to partition the properties mutually or by intervention of the revenue Courts or civil Court. ' In absence of such proof of partition, the parties were entitled for partition of their share and separate possession. After appreciating the evidence adduced on behalf of the parties, the trial Court has decreed the suit vide well reasoned judgment which has been reversed only on the ground of Ex.Dt^O^'t^l^' 1, which was not admissible in evidence and even same was- document of

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S.A. No.222/2004

complete partition. Consequently, the substantial question of law is decided as negative.

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On the basis of finding on the substantial question of law formulated for decision of this appeal, the appeal is allowed, judgment <& decree of the lower appellate Court is hereby set aside and the judgment <& decree of the trial Court is hereby restored.

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The parties shall bear their own cost of appeal.

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Advocate's fee, if certified, as per schedule.

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roshare

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becree be drawn-up accordingly.

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j Sd/-I
T.P. SharmaT
Judge

Mahesh Rawat and Others v. Rudra Prasad Yadav and Others

Case brief

What is this about?

What did the court decide?

Mahesh Rawat and Others v. Rudra Prasad Yadav and Others

Case brief

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