Allowed

Hariram v. Daya Shankar and Ors.

Chhattisgarh HC2 Sept 2014SA/344/1999

Case brief

AI extract

What is this about?

Single Bench allowed three second appeals against lower appellate judgments that reversed trial court decrees. The High Court held that the existing evidence was insufficient and unreliable to conclusively determine whether the deceased executant was a minor on the date of the sale deeds. The disputes were remanded to the trial court to ascertain the exact date of birth and allow fresh evidence.

What did the court decide?

Second appeals allowed; judgments and decrees of courts below set aside; cases remitted to trial court to decide afresh after taking evidence on the age of Kaliram.

Hariram Vs Daya Shankar and Ors. — Succession and Inheritance | Chhattisgarh HC (2014)

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§ECOND^{APPEALUNDERSECTION} loguoy^THE .commggwgw PROCEDU RE "~":j

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r: APPELggiE ... Hari Ran son of Shri Ram Prasédwetawar' aged about 38 years, odcupation .cultiVation, resiaent of village 4 Lariya, Tehsil Baloda Bazar, District Raipur, Iv1.P.

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, XLERSUS RESPONDEN’Ig . . ' {5 Lariya, Tehsi l Vbk!‘ — &nt bhukwara wdo/o late Bhul Wu ‘ uJHk :gfdli mg“’{l‘ \“\b Sgtnanl, aged 42 year$, res1uent of> {A€ g village Lariya, Tehsil \Baloaa Bazar, District Raipur, MJP. — Horilal Son of late BhulaQ, rage' 20 yrsg

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.. Kartik son of late. Bm1.,a{rl’,.‘age 16 Ywrs“€{ 'Agham 4— D^- son of Bhulan, age 14 years ? Uttan Kumar s/o Bhulam, age 22 years W uM.. - Ku. Pénchobai, a/o late Bhulan, age 8 years 2B to 2;: are^‘umrS through them: "L natural guarcaan mother Sm t. Shukwam resiaent of village Lariya, tehsil Baloda Bazar, DiSt't. Raipur, M.P.

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2 Rannath son of $hivlal Yaal, age 52 yrs.

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X I occupatioh cul livation, resident of village Si tapar, tehsll Baloda Bazar, ‘

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Districtgaipur, M.P.

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4 Bhuneshwar son of shivlcl Yadu, age 49 years, occupatlon cul tlvatlon, reSldentf ol Vlllage S1 tapar, tehSll Balo ea Baqza

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EN THE HIGH CGUR’E‘ OF JUDICA’IURE AT JAB&PUR (M.P.) SECOND APPEAL m.§“‘1/1999 CWC"

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SECOND APPEAL UNDER SECTION 100 OF THE CODE OF GIVE PROCEIURE

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APPELILANE

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Hari Ram son ot‘ Shri Ram Prasadjt‘‘hetawar aged about 38 years, occupation cultivation, resiéent of village Lariya, Tebsil Balocia Bazar,’ nistxici: Raipur, M.P.

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VERSUS

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i, V‘Mm\7nmix‘am V i i, J; 1 4 W&k1 ”1a) mya $hankar age<§ 4s yeara a Ey 1h) Hear‘ex Daé aged 28 ye‘érs J3» fKCb 1:5} $mi1. Bhuri Eai, age o0 years (i%.1a^and1bsan$ onci iwJc witSaw a£ late shri Kalixam "Iehail $lcs. village Lariya, Paiari. Diotrict Raipnr (QEJ

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“-JMUb \ DistriCt Raipur, M.P. 2B .. Horilal son of late Bhulam age 20 yrs 2C^- Kartik San of late Bh‘ui'éh age 16 yrs,, 2D^—’Agham son of Bhulan, age 14 years 2E^— Uttam Kumar s/o BhulaQ, age 22 years 2F^-— Ku. Panchobai, d/o late Bhulan, age 8 years

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,2B to 2F are mimra^-thmugh their natural guardian^motherSmt. Shukwam resiclent of village Lariya, tehsil Baloda Bazar, Dis tt. Raipur, M.P.

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2 Rannath son of Shivlal Yadl, age 52 yrS. ‘ occupation cul tivation, reSident of village Sitapar, tehsil Baloda Bazar, DiStrict- Raipur, M.P.

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‘.

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4 Bhuneshwar son o£ Shivlal Yaé‘u, age 49 years, occupation cultivation, resident of village Si taoar, tel'isil‘ Baloo‘a Bazar’ DIS‘crict Raipur, M.P.

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‘i’xn

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Umeé Das son of Modi Satnani,“ aged about 30 years, reSi dent^of village Si t®un Tahsil Bali“) dabazari District Raipur.‘

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‘W (g Ghanshyam son of $13; Irlodi Satnmi, aged about % years; resident of village attapur,’ Tahsil Baloda Bazar; m s tri c t Raipur; M. P.

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'me State ofM.P. through the Collector Raipur, District Raipur.

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Second Apgeal^No.339of1999

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APPELLANT:		Panchram
	Ver	sus
RESPONDENTS:	1.	Kaliram (Dead) through ^LRs
		a. Daya Shankar
		b. Heera Das
		c. Smt. Bhuri ^Bai
	2A.	Smt. Shukwaro (Died ^{and deleted)}
	2B.	Horilal
	2C.	Kartik
	2D.	Aghanu
	2E.	Uttam Kumar
	2F.	Kumari Panchobai
	3.	Umed Das
	4.	'Ghanshyam
	5.	TheState^o'fMTP.(now ^{the State of 0G.)}
w	Second App	eal ^{No.344 of 1999}
APPELLANT:		Hari Ram
	Ve	rsds
RESPONDENTS:	1.	Katiram (Dead) through ^LRs
		a. Daya Shankar
		b. Heera Das
		c. Smt. Bhuri ^Bai
	2A.	Smt. Shukwara (Died ^{and deleted)}
	2B.	Horilal
	2C.	Karlik
	2D.	Aghanu
	2E.	Uttam Kumar
	2F.	Ku. Panchobai

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Page 2 of 7

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S.A.Nos.339/1 999, 344/1^{999&1007/1 999}

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		Ramnath
		Bhuneshwar
		Uma Shanker
		The State of MP. (now ^{the State of C.G.)}
		AND
	Second App	eal No,1 007 of 1999
APPELLANT/z (Plaintiff)	1.	Tulsi (Dead) through LRs Amaru
	2.	Satrughan
	Ve	rsus
RESPONDENTS:	1.	Kaiiram (Dead) through ^LRs
		a. Daya Shankar
		b. Heera Das
		c. Smt. Bhuri Bai
	2A.	Smt. Shukwaro (Died and ^deleted)
	2B.	Horilal
	20.	Kartik
	2D.	Aghanu
	2E.	Uttam Kumar
	2F.	Ku. Pancho Bai
	3.	The State of MP. (now the State ^{of C.G.)}
{Second ^appeal	^{s under Section}	^{100 of the Code of Civil Procedure, 1908}}

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Present:

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Mr. B.P. Gupta.,counsel for the appellants^{inalltheappeals.} Mr. Anil Singh Rajput, counsel for respondents No.1a, b and c in S.A. No.339/1 999.

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Mr. Ravindra Sharma, counsel for respondents No.1a, b and c in S.A.

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No.1007/1999.

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None present for other respondentsⁱⁿ S.A.Nos.339/199^{and1007/1999.}

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Page 3 of 7

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S‘A.Nos.339/1999, 344/1999^&1007/1999

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None present for the respondents^{inS.A.No.344/1999.}

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Mr. Roshan Dubey, Panel Lawyer^fortheState.

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Single Bench: Hon’ble Mr. T.P. Sharma,^J

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ORDER

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(3-9-2014)

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All the aforesaid three second^{appealshavingcommonsubstantial} questions

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of law are being disposed^{ofbythiscommonorder.}

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Present second appeals under Section 100 of the CPC have been filed against the judgments and decrees passed by the lower appellate Court reversing the judgments &^decrees passed^{bythetrialCourtanddecreeing}

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the suits filed on behalf^ofthe plaintiffs,^{thedetailsof whichareasfollows:-}

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S.A.No.		TrialCourt		First Appel	late ^Cou	^rt
339/1999	Civil Bazaa 1991 dated	Judge Class-l, r - Civil Suit N - Judgment and 11-10-1996	Baloda o.80-A/ decree	2“ Additional Baloda Bazaar No.5—A/1997 - decree ^{dated 24-}	District — Civil Judgme ^{1 1-1998}	Judge, Appeal nt and
344/1999	Civil Bazaa 1991 dated	Judge Class-I, r - Civil Suit - Judgment and 11-10-1996	Baloda No.79-A/ decree	2m Additional Baloda Bazaar No.6-A/1997 - decree dated 24—	District - Civil Judgme 1 1-199	Judge, Appeal nt and 8
1007/1999	Civil Bazaa 1991 dated	Judge Class-l, r - Civil Suit - Judgment and 11-10-1996	Baloda No.81-A/ decree	2"“ Additional Baloda Bazaar No.4-A/1997 - decree dated 24	District - Civil Judgme -1 1—199	Judge, Appeal nt and 8

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Present second appeals have been admitted for consideration on the

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following common substantial questions^oflaw:—

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(1)^{WhethertherehadbeenapartitionbetweenKaliramand} his brother Bhulau in which the lands in dispute were allotted to the share^ofKaliram.

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(2)Whether the finding of the first appellate Court that registered sale-deed dt. 17.6.1959 executed by^Kaliram in favour of Darshan is void because he was^minoron that date, is perverse.

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Page 4 of 7

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war

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S.A. Nos.339/1 999, 344/1 999 & 1007/1 999

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(3)^{WhetherDarshanandhissuccessor-in-titlehavebeenin} actual possession of land in dispute since 17.6.1959 and therefore,ihe title of Kaliram has been distinguished.

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As per facts of the cases, deceased respondent No.1 Kaliram had executed three sale deeds on 17-6-1959 in favour of Tulsi (dispute in question in S.A. No.1007/1999), Umed Das & Ghanshyam (dispute in question in S.A. No.339/1999), and Darshan (dispute in question in S.A.No.344/1999). Aforesaid purchasers have subsequently sold the lands to others and subsequent purchasers have executed sale deed in favour of plaintiff Tulsi. On the basis of aforesaid sale deeds, deceased Tulsi came into possession upon the property, thereafter, name of Tulsi was mutated and finally, at the instance of Kaliram revenue proceeding was initiated and name of Kaliram was amended by deleting the name of Tulsi, then three civil suits for declaration and permanent injunction were filed.

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By filing written statements, contesting respondent Kaliram had denied the adverse allegation and has specifically pleaded that at the time of^first sale deed dated 17-6-1959 he was minor, therefore, all sale deeds executed by him in favour of Tulsi, Umed Das, Ghanshyam & Darshan were void ab^initio and not voidable and do not confer any title upon the purchasers or subsequent purchasers.

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After providing opportunity of hearing to the parties, the trial Court has decreed the suit in favour of deceased plaintiff^{Tulsiwhichwaschallenged} before the lower appellate Court and the lower appellate Court while reversing the judgment and decree has dismissed the suit substantially on the ground that on the date of execution of sale deeds by Kaliram dated 17-6-1959, Kaliram was minor, therefore, the sale deeds executed by him were void ab initio.

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Page 5 of 7

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S.A,Nos.339/1 999, 344/1 999 &^1007/1999

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Heard learned counsel for the parties present. Judgments & decrees and records of both the Courts below perused.

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Learned counsel for the appellants^{submitsthatas} per^{thedocumentEx.P-4,} deceased Kaliram was major^{onthedateofexecutionofsaledeeds.}

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On the other had, learned^{counselappearingonbehalfofLRsofdeceased} Kaliram submit that on the basis of evidence of defendant Kaliram (DW-1) and Aghandas (DWv3), deceased^{Kaliramwasminoronthedateofexecution} of sale deeds.

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identical evidence has been^{recordedinallthreecasesandforthe} purpose^of alleged date of birth, both the parties^have filed documents and examined witnesses. Ex.P-4 is correction register^{ofrevenuerecordwhich} is related to correction proposed dated 1—7-1960 and as per the document, Kaliram became major three years prior to the alleged date i.e. as per its endorsement, Kaliram attained^{theageofmajorityonorbefore1957.} This is public document. The respondents have examined defendant witness Aghandas (DW-3), Kotwar,^whohas proved^Kotwari punji^{Ex.D-1showingthe} date of birth of Kaliram as^{27-10-1941,butinhiscross-examination,hehas} specifically deposed^{thathewasnotKotwarattherelevanttime,evenhisage} was only 24 years. Aghandas (DW-3) has^{furtherdeposedthathismaternal} grand-father^{wasKotwar,hedoesnotknowformanyyearshewasKotwar} and who were other Kotwars. He has also deposed^{thatentryinEx.D-1} is not the writing of his maternal grand-father, but the writing of different persons. Even he does not know^{whythethenKotwarhasnotdepositedtheregister.} These are the documentary^evidence.

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Other evidence relating to age are oral evidence in which on the^oneside deceased Kaliram has deposed that he was minor on the date of alleged

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"*\ execution of sale deed^dated 17-6-1959 and on the^otherside in para^5of

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r cross-examination deceased Tulsi himself has admitted that at the time of

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Page 6 of 7

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S.A.Nos.339/1999, 344/1999 & 1007/1999

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execution of sale deed Kaliram was aged about 16-17 years and has further deposed that he was major.

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Oral evidence of the witnesses are hypothetical relating to age. Document has been executed on 17—6-1959. As per Ex.D-1, date of birth of Kaliram was 27-10-1941 i.e. if the date mentioned in Ex.D-1 is considered then the age of Kaliram would be about 5 months less than 18 years i.e. his age would be 17 years^{andmorethan7months.} In the light of close difference of age in the evidence of Aghandas (DW-3), Ex.D-1 and Ex.P-4 and other public documents, it would be difficult to‘believe upon any of the evidences to ascertain the age of Kaliram on the date of execution of sale deed dated 176-1959.

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Evidence of Aghandas (DW-3), Kotwar, clearly reveals that there was scope for examination of persons who have written the document Ex.D-1 to establish the age of Kaliram conclusively and-the’appellants were also having ample opportunity to examine the persons and documents relating to Ex.P—4 in original to prove the age of Kaliram on the date of execution of document, but unfortunately, both the parties have placed reliance on the documents and evidence which were not conclusive in nature and not sufficient for drawing inference on the basis of preponderance of probability that what was the exact age of Kaliram at the time of execution of sale deed.

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Undisputedly, the deciding issue of the cases is age of Kaliram on the date of execution of sale deed dated 17-6-1959 and other issues No.1 to 3 are immaterial, at this stage. Therefore, instead of deciding issue No.2 or arriving at a finding upon the hasty evidence of both the parties relating to age of Kaliram, it would be appropriate to provide the parties specific opportunity to adduce evidence to prove the exact date of birth and age of Kaliram on the date of execution of sale deed i.e. 17-6-1959.

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Page 7 of 7

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S.A.Nos.339/1 999, 344/1999 &^1007/1999

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Consequently, substantial question of^{IawNo.2isdecidedthatinabsenceof} illegal and unreliable evidence it would be dimcult to hold whether Kaliram was minor on the date of sale deed^i.e. 17-6-1959^ornot.

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On the basis of aforesaid finding, S.A.Nos.339/1999,^{344/1 999&1007/1 999} are allowed. Judgments and decrees passed by^{boththeCourtsbelowinthe} aforesaid appeals are hereby set aside.

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17.All the cases are remitted back^{tothetrialCourtfor} providing^{opportunityof} adducing evidence and hearing the parties^{especiallyrelatingtoassertionof} age / date of birth of Kaliram on the date^{ofexecutionofsaledeed} i.e. 17-6-

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1959 and to decide the cases afresh.

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Parties shall remainⁱⁿ attendance before^{thetrialCourton14-10-2014.}

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Soma

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Sd/~ T. P. Shanna Judge

Hariram v. Daya Shankar and Ors.

Case brief

What is this about?

What did the court decide?

Hariram v. Daya Shankar and Ors.

Case brief

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What did the court decide?

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