High Court dismissed the second appeal, upholding lower courts' findings that land had been partitioned 35 years prior. Lack of mutation did not invalidate the partition proved by evidence and long-standing separate cultivation.
Second appeal dismissed; parties to bear their own costs.
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.
S.A.No.354/1999
NAFR
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HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.354 of 1999
Order reserved on: 6-3-2019
Order delivered on: 12-3-2019
(Plaintiffs) ---- Appellants
Versus
1-a. Shobhit Ram Kushwaha, S/o Late Indraman Kushwaha, aged about 60 years,
1-b. Ramjatan Kushwaha, S/o Late Indraman Kushwaha, aged about 50 years,
Both are R/o Village Kerwa, Tahsil and District Surajpur (C.G.)
2-a. Ishwar Prasad Kushwaha, S/o Late Mahavir Kushwaha, aged about 60 years,
2-b. Shankar Prasad Kushwaha, S/o Late Mahavir Kushwaha, aged about 50 years,
2-c. Dinesh Kushwaha, S/o Late Mahavir Kushwaha, aged about 45 years,
All are R/o Village Kerwa, Tahsil and District Surajpur (C.G.)
3-a. Ramnaresh, S/o Late Ramsurat, aged about 55 years,
3-b. Ramdular, S/o Late Ramsurata aged about 45 years,
Both are R/o Village Patiadand, Tahsil and District Surajpur (C.G.)
S.A.No.354/1999
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(Defendants) ---- Respondents
For Appellants: Mr. Ashok Kumar Shukla, Advocate. For Respondents No.1-a to 11: - None present. For Respondent No.13 / State: -
Miss K. Tripti Rao, Panel Lawyer.
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
substantial question of law: -
“Whether the courts below have erred in dismissing the plaintiffs' suit by holding that the oral evidence led by the defendants outweighs the documentary evidence in favour of the plaintiff?”
(For sake of convenience, parties would be referred hereinafter as per their status shown in the plaint before the trial court.)
S.A.No.354/1999
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S.A.No.354/1999
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has one half share on the suit property, is not acceptable. Secondly, it was also held that the suit property has already been partitioned between the parties long back and as such merely because, in the revenue records, their names have not been separately recorded, it cannot be held that partition has not taken place between the parties again which second appeal was preferred by the plaintiff in which substantial question of law has been framed on 12-8-1999 and set-out in the opening paragraph of the judgment.
S.A.No.354/1999
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considered his submissions made herein-above and also went through the record with utmost circumspection.
S.A.No.354/1999
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Madhusudan Dubey (DW-3), Matukdhari (DW-4) and Sadhucharan (DW-5) also held that sons of Jainarayan – Mewa, Chopa, Chandan and Juan and plaintiff's father Rupsai were cultivating the suit land in their respective shares on partition for last 35 years and these five persons jointly acquired the suit land and the trial Court further held that the revenue record Exs.P-1 & P-2 do not confer any title, as such, the plaintiff is not entitled for half share in the suit property particularly in view of the statement of his mother who stood as defendant No.6 in the trial Court and was examined as DW-1. On appeal being preferred by the plaintiff and his mother, again the first appellate Court elaborately discussed the evidence and on close analysis, reached to the conclusion that the suit property was not acquired by Jainarayan and Ramfal, as they died prior to the Surguja Settlement and it was settled in the Surguja Settlement jointly in the names of Mewa, Chopa, Chandan and Juan and plaintiff's father Rupsai. The learned first appellate Court also referred to the Surguja State's Wajibul Arj 1939 and held that prior to Surguja Settlement, the persons holding the land were holding it as riyyati, but prior to settlement, no person had right over the said land. The first appellate Court also considered the testimonies of all the plaintiff's and the defendants' witnesses and clearly came to the conclusion that merely because half share is recorded in the Surguja Settlement in the revenue records vide Exs.P-1 & P-2, it cannot be held that Rupsai has half share in the suit property, as it was settled in favour of five persons jointly and particularly in view of the statement of defendant No.6 – mother of the plaintiff that
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partition has already taken place between the sons of Jainarayan and plaintiff's father Rupsai – her husband and they are in separate cultivating possession of the suit land.
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Even both the Courts have recorded that the defendants' next generation has also further partitioned the suit land and they are cultivating their land barring the fact that lands are jointly recorded and mutation has not taken place which the parties have right to get their names mutated separately and which appears to be correct also on the count that mutation either does not confer any title or does not extinguish title on the basis of what has been recorded in the revenue records, as it is only for fiscal purpose for collecting revenue by the concerned revenue officials. Not only this, both the Courts have placed heavy reliance upon the statement of Dasodiya – mother of the plaintiff with whom the plaintiff has filed first appeal before the first appellate Court claiming half share in the suit property.
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below that the suit land has already been partitioned between the parties 35 years prior to the date of institution of suit, merely on the ground that revenue records have not been updated as per the share held by the parties on partition particularly when it is not the case of the plaintiff that partition effected is unjust, unfair and detrimental to the interest of the plaintiff.
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finding recorded by the two Courts below holding prior partition by which parties are cultivating separately except non-mutation in the names of the persons in possession, is binding to this Court and it is not open to interference in the appellate jurisdiction under Section 100 of the CPC.
Sd/-
(Sanjay K. Agrawal) Judge
Soma
2 (2018) 11 SCC 77
3 issues framed by the court
Whether the courts below erred in dismissing the suit by holding that partition had already occurred 30-35 years prior and was not open to reopening?
Whether the High Court can interfere with concurrent findings of fact recorded by two courts below under Section 100 of the CPC?
Whether cultivation of land in separate shares without mutation proves partition had taken place legally?
Colour shows how this judgement treated each authority
Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and othersExplained¶77
(1976) 1 SCC 214 · Who else cites this
1 provisions across 1 enactments
Ramlal @ Babulal
Dashodhia
Shobhit Ram Kushwaha
Ramjatan Kushwaha
Ishwar Prasad Kushwaha
Shankar Prasad Kushwaha
Sanjay K. Agrawal
As recorded by the court registry
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