This second appeal challenged findings regarding land partition and possession between plaintiff-heirs and defendant-heirs, questioning the trial court's recording of facts about exclusive possession after forfeiture by the state.
The second appeal was dismissed without substance, leaving parties to bear own costs. A decree was directed accordingly.
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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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.96 of 2006
Judgment reserved on :02.12.2019
Judgment delivered on:09.12.2019
1. Puhup S/o. Babel Kenwat, aged 48 years, OccupationAgriculture.
2. Ful Bai widow Sukhari Kenwat aged 53 years,
3. Lalli, D/o. Sukhari Kenwat, aged about 31 years,
4. Shyam Kunwar, D/o. Sukhari Kenwat, aged 28 years
5. Man Kunwar D/o. Sukhari Kenwat, aged 26 years,
6. Uttarra, D/o. Sukhari Kenwat, aged 23 years
All are R/o. Village-Khairawar, P.H.No.12, Dashrangpur, Distt. Kabirdham (Kawardha) (CG)---- Appellants/Plaintiffs
Versus
1. Khelawan S/o. Kanhai, aged 33 years
2. Goutariha, S/o. Kanhai, aged 30 years
3. Nanhai, S/o. Ratan Kenwat, aged 65 years
All are by Occupation-Agriculture, R/o. Village
Khairwar, P.H.No.12, Dashrangpur, Distt. Kabirdham
(CG)
---- Defendants
4. State of Chhattisgarh Through Collector Kabirdham (CG)
---- Respondents
For Appellants/Plaintiffs:
Mr.Rajeev Shrivastava and Mr.Malay
Shrivastava, Advocates
For Res.No.1 to 3/Defendants:
Mr.H.B.Agrawal, Senior Advocate
with Ms Richa Dwivedi, Advocate
For Respondent No.3/State:
Ms Shivali Dubey, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
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1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants/plaintiffs are as under:-
“1. Whether the finding recorded by the IInd Civil Judge Class-I, Kawardha in Civil Suit No.16-A/2001 on issues No.5 and 6 is unsustainable being contrary to the evidence, oral as well as documentary, on record ?2. What is the effect of, the first appellate Court not considering at all the ground relating to earlier partition ?”
[For the sake of convenience, the parties would
be referred hereinafter as per their status
shown and ranking given in the suit before the
trial Court].
2. The suit property bearing Khasra Nos.266/3 and 282/2 area 4.69 acres of land was earlier held by Goutarhin of village Khairwar Sumitra Bai, she failed to pay land revenue and therefore, the land was forfeited. Since the father of the plaintiffs namely Bandel and father of the defendants namely Ratan were in possession and it is the case of the plaintiffs that the land was settled in their favour, but the defendants' father Ratan was elder one, therefore, it was settled in his name and after death of Bandel and Ratan, the land came in possession of the plaintiffs
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and the defendants and they made the land cultivable.
The land was partitioned 30 years prior to the date
of filing of the suit and Ratan & Bangel remained in
possession during their lifetime and after death of
Ratan, defendant No.2 raised some dispute, in which
meeting of panchayat was convened and the parties
were directed to remain in possession as per
partition already made. The plaintiff relied upon
unregistered sale deed dated 25.8.88 and the
defendants started demanding 1/2 share in the suit
property which necessitated the filing of the suit
for 1/2 share in the suit land bearing Khasra
Nos.266/3 and 282/2 area 4.69 acres.
3. Defendants No.1A and 1B filed their written statement and admitted the claim of the plaintiffs and also filed counter-claim.
4. Defendant No.2 filed his separate written statement and also stated that the plaintiffs have no cause of action and as such, they are not entitled for decree of declaration of title and partition.
5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 17.1.2002, dismissed the suit holding that only the defendants' father Ratan
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was in possession of the land held by Sumitra Bai as
successor and fact of partition between Ratan &
Bandel is not proved and fact of convening of
panchayat meeting to resolve the dispute by defendant
No.2 is also not proved. It was further held that the
plaintiffs are in possession of 1/2 share in the suit
property is also not proved. Against the judgment and
decree of the trial Court, the plaintiffs preferred
first appeal under section 96 of the CPC before the
first appellate Court. The said Court affirmed the
judgment and decree of the trial Court and dismissed
the appeal, against which, this second appeal under
Section 100 of the CPC has been filed by the
appellants/plaintiffs, in which substantial questions
of law have been formulated by this Court, which have
been set-out in the opening paragraph of this
judgment.
6. Mr.Rajeev Shrivastava, learned counsel for the
appellants/plaintiffs, would submit that both the
Courts below are absolutely unjustified in answering
issues No.5 and 6 as negative, it ought to have been
answered affirmative as the plaintiffs are in
possession of 1/2 share in the suit property and
referred para-12 of statement of Kanhai @ Runga
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(DW-4) to demonstrate that the plaintiffs are in
possession of 1/2 share in the suit property, as
such, finding with regard to issues No.5 and 6 is
perverse.
7. Mr.H.B.Agrawal, learned Senior Counsel with Ms Richa Dwivedi, learned counsel for respondents No.1 to. 3/defendants, would support the impugned judgment and decree.
8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection.
9. Since the substantial question of law relates to Issues No.5 and 6 framed by the trial Court, it would be expedient to reproduce the issues framed by the trial Court and its finding recorded therein
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6
fd;s ?
R;w ds ckn izfr- dza- 2 }kjk caVokjk vizekf.kr dk fookn mBkus ij iapk;rh }kjk vkilh lgefr ls jru ds fgLls dh tehu dks izfr- dzekad 2 ,oa 1¼v½ ds firk ds e/; ckVk x;k ?`?10.It is admitted position on record that the land
was granted to Goutarhin Sumitra Bai, but since
Sumitra Bai failed to pay the land revenue, the land
was forfeited and it is the case of the plaintiffs
that since they were cultivating and managing the
same, it was given to the plaintiffs' father and the
defendants' father, whereas it is the case of the
defendants that only the defendants' father was in
possession of the suit land and thereafter their
successor-in-title are in possession of the suit
land. The trial Court while recording finding on
issue No.3 has clearly recorded a finding that in the
land held by Goutarhin Sumitra Bai from the
Government, only Ratan, predecessor-in-title of the
defendants was in possession of the suit land. The
trial Court further recorded a finding that it is
incorrect that the after death of Buddhu, the
plaintiffs' predecessor-in-title and the defendants'
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predecessor-in-title both came in possession jointly
and they were allotted the land by Kawardha State and
they have partitioned. In appeal filed by the
appellants/plaintiffs, it appears that both findings
have been affirmed by the first appellate Court and
in second appeal, these findings have not been
challenged by the plaintiffs and no substantial
question of law has been formulated on such findings.
11.Issue No.5 relates to inter-se dispute between
two sons i.e. defendants No.1 & 2 and issue No.6
relates to possession of the defendants over the suit
property to the extent of 1/4 share and possession of
the plaintiffs over the suit property to the extent
of 1/2 share in the suit property. It has already
been held by two Courts below that after the suit
land was forfeited by the Kawardha State from Sumitra
Bai, it came in exclusive possession of predecessor-
in-title of the defendants i.e. Ratan and after death
of Ratan, the defendants are in possession of the
suit land and it was never given to the plaintiffs'
father & the defendants' father jointly, as such,
finding recorded by two Courts below that the suit
land after forfeiture came in possession of the
defendants' father Ratan and thereafter in possession
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of the defendants is purely finding of fact based on
evidence available on record. It is neither perverse
nor contrary to record. Finding recorded on issues
No.5 and 6 by both the Courts below is clearly
finding of fact binding to this Court. Likewise,
there is sufficient evidence on record to hold that
the suit land fell in share of Ratan, predecessor-in-
title of the defendants, as such, non-consideration
of earlier partition has not caused any serious
prejudice to the case of the appellants/plaintiffs. I
do not find any illegality or perversity in said
finding. The substantial questions of law are
answered accordingly.
12. Accordingly, the second appeal being without substance is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).
13. A decree be drawn-up accordingly.
Sd/- (Sanjay K.Agrawal)
Judge
B/-
2 issues framed by the court
Whether the finding recorded by the IInd Civil Judge on issues relating to possession and partition is unsustainable being contrary to the evidence on record?
What is the effect of the first appellate court not considering the ground relating to the earlier partition?
2 provisions across 1 enactments
Puhup S/o. Babel Kenwat
Ful Bai widow Sukhari Kenwat
Lalli D/o. Sukhari Kenwat
Shyam Kunwar D/o. Sukhari Kenwat
Man Kunwar D/o. Sukhari Kenwat
Uttarra D/o. Sukhari Kenwat
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court