Allowed

Sonmati and Ors. v. Jhitru and Ors.

Chhattisgarh HC2 Sept 2014SA/391/1999

Case brief

AI extract

What is this about?

Second appeal in a suit for declaration and partition. The High Court allowed the appeal, finding the Khasra numbers were amended but referred to the same property. Shares were recalculated based on inheritance from two deceased brothers, allottig 1/3rd each to the three appellants and respondent.

What did the court decide?

Impugned judgement and decree set-aside; original trial Court judgement and decree restored.

Sonmati and Ors. Vs Jhitru and Ors. — Partition | Chhattisgarh HC (2014)

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IS-1HE HXSH-:e@0RS OP J&DIC&roRB-AT JABALPUK M.P,
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Secoad &Epeal N0. . .-^ '^.. . . ./l 99 9
A@@_ellaat.s 1- SOmi&TI, aged 60 years,
Plaintiff Wd/o fe te fisrada s .
2- JHA.DU,aged 48 years
S/o late Arctoint.
3- BOHDK&,aged45years,
S/o Iiate ArcbiBt.
All resldeat of Villa.ge,
Kbaaiargaon a'ehsil Jagdalpar,
Dlstricb BASTAR (M.P.)
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Versas
Rsspondents 1- Jhitra, aged 40 years,
S/o late Sukdas.
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[2- Kahadeo, aged 35 years^ >&ff>^*-^
S/o late Sukdas. J,'J^'}-1'^
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Both resd.den't of Village, I'1'
gbamargaoa, <fehsil Jagdalpur,
District BAS'E&R (H.P.)
^GQNB&PPE&I, U/S 100 OF THE CIVII, PKOCEDORE CODE.

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IN THE HIGH COURT OF CHHATTISGARH. BILASPUR

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SINGLE BENCH

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HON'BLE MR.T.P. SHARMA. J

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S.A.No.391 of 1999

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Appellants 1. Sonmati Plaintiff

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Jhadu

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Bondka

^^1.:

versus

Respondents

Jhitru

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Mahadeo

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(Died and deleted)

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Second ARBeal undesr^ectionAQO of the Civil Procedure Code

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Appearance:

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Mr. Prafull N. Bharat, counsel forthe appellants. None for respondent.

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JUDGMENT (03.09.2014)

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This second appeal filed against the judgment and decree dated 28.11.1998 and 01.12.1998 passed by the First Additional District Judge, Jagdalpur, in Civil Appeal No.S-A/1998 reversing the judgment and decree, dismissing the suit dated 17.01.1998 passed by the IIIrd Civil Judge Class-11, Jagdalpur, in Civil Suit No.159-A/96, has been admitted for consideration on the following substantial questions of law:

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"Whether the finding of the first appellate Court (1) that Khasra No.5/13 is not the old Khasra No.5/8 area 2.60 acres belonging to Astu is perverse"?

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/'}! i-

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II: li?;';

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(2) "Whether the plaintiffs have 2/3rd s/iare in the land in dispute"? ,

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As per the case of appellants/plaintiffs, one Astu was holding the land bearing Khasra No. 5/8 area 2.60 acres at village Khabhar, Tahsil Jagdalpur. After his death and his eldest son's death Archint, the land was recorded in the name of deceased Sukdas as eldest living son ofAstu as per custom of the Bastar district and appellants/plaintiffs are legal heirs of one son of Astu namely Archint, and wife of one son (appellant No.1). Third son Gurudas has died issuless, and respondent No.1 is at present only LRs of second son of Astu namely Sukdas. After the death of Astu, four sons inherited the property and after the death of one son Gurudas issuless the total property was inherited by LRs of three brothers in equal share. On the basis of aforesaid pleading,^thesuitfor dedaration, possession and partition was filed.

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i$i

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By filing written statement, contested defendants have denied the adverse allegation and have pleaded that Khasra No.5/13 owned by them was not the property recorded in the name of Sukdas but it was recorded in the name of Laichhanand from Laichhan they acquired the property.

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After providing opportunity of hearing to the parties, the trial Court decreed the suit and the lower appellate Court reversed the judgment and decree on the ground that Khasra No. 5/8 and 5/13 are not one and same.

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Heard learned counsel for the appellants, the judgments and decree impugned & records ofthe Courts below perused.

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Learned counsel for the appellants submits that documentary evidence are sufficient to prove the substantial questions of law in favour of the appellants. He further submits that Ex.P/7 a copy of records of right of 1939-1940 shows that Astu was owner ofthe Khasra No.5/8 area 2.60 acres. Ex.P/8 is another

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document of records of right of 1944-45, which shows that Khasra No.5/8 area 2.80 acres was recorded in the name of Sukdas, son of Astu. Respondents have filed Ex.D/2, which also shows that the land was owned by Sukdas in the year 1954-55. Original Khasra No.5/8 area 2,60 acre which was amended as Khasra No.5/13 area 2.80 acres i.e. during the cadastrat survey the name was corrected though the respondents have tried to show that Khasra No. 5/8 was owned by Anant Prasad and another, which reflects Ex.D/3. He also submits that even otherwise Zhitru (DW/1) himself has admitted in para 4 that after the death of Sukdas, the land was recorded in their name and the same property is in suit in this case i.e. respondents have atso admitted that after the death of Sukdas, the landwas recorded in their name but they have not filed any documentto show that Khasra No. 5/8, which was owned by Sukdas, was recorded in their name thought the amendment made in Ex.D/2 specify the fact that Khasra No. 5/8 was amended as Khasra No.5/13 even he has not deposed that he acquired the title upon Khasra No.5/13. Ex.P7, Ex.P/8 and Ex.D/2 are self-explanatory and are sufficient to prove the fact that Astu was holding the land bearing Khasra No.5/8, which was recorded in the name of his son Suklal and number of Khasra No. 5/8 was amended as Khasra No.5/13 in the year 1954-55. Initially, in the year 1944-45, as per Ex.P/8, Khasra No. was 5/8 even otherwise appellants/plaintiffs has claimed the succession upon the property left by Sukdas. As per Ex.D/2, they amended the Khasra No. owned by Sukdas was 5/13. Respondents have claimed that they have acquired the property from other source and not inherited from Sukdas, which does not find support from any substantive evidence.

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As per the evidence of the parties, finally three sons of deceased Astu, the origina! owner of the tand, and their legat representatives are alive anti as such each of the son will inherit 1/3rd share. Therefore, the appellant No.1 will inherit 1/3'11, appetlant No.2 and appetlant No.3 witt inherit 1/3rcl & respondent will inherit 1/3rd share ofthe land.

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Consequently, substantial question of law No.1 is decided as positive and substantial question of law No.2 is aiso dedded as positive.

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On the basis of finding on the substantial questions of law formulated for the decision ofthis appeal, the appeal deserves to be allowed and is hereby allowed. Judgment and decree passed by First Additionat District Judge, Jagdatpur in Civil Appeal No. 8-A/98 are hereby set-aside, and the judgment and decree passed by the IIIrd Civil Judge Class-11, Jagdalpur in Civil Suit No.159-A/96 are hereby restored.

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Parties shall bear their cost of appeal.

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Advocate fees as per schedule, if certified.

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Decree be drawn up accordingly.

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Sd/-

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T.P. Sharma Judge

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^ijay

Sonmati and Ors. v. Jhitru and Ors.

Case brief

What is this about?

What did the court decide?

Sonmati and Ors. v. Jhitru and Ors.

Case brief

What is this about?

What did the court decide?

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Issues for consideration

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