Dismissed

Shekhar Agrawal v. Harihar

Chhattisgarh HC5 Dec 2023SA/200/2017

Case brief

AI extract

What is this about?

The High Court allowed an application to condone delay and then dismissed a second appeal. The court held the appellants, who were bona fide purchasers, were not adversely affected by the lower court decree as their rights were secured via adjustment of shares; thus, no appeal lay.

What did the court decide?

Application for condonation of delay allowed accordingly. Second Appeal dismissed as not maintainable.

Shekhar Agrawal Vs Harihar — Partition | Chhattisgarh HC (2023)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

SA No. 200 of 2017

¶5

1. Shekhar Agrawal S/o Sajan Agrawal, Aged About 27 Years Caste Agrawal, R/o Village And Post Saraipali, Tahsil Saraipali, District Mahasamund, Chhattisgarh, Chhattisgarh

¶6

2. Atul Agrawal S/o Shivlal, Aged About 28 Years Caste Agrawal, R/o Village And Post Saraipali, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶7

---- Appellants

¶8

Versus

¶9

1. Harihar S/o Mitrabhanu, Aged About 60 Years R/o Village Jognipali, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶10

2. Banshidhar S/o Mitrabhanu, Aged About 55 Years R/o Village Jognipali, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶11

3. Shantilal S/o Mitrabhanu, Aged About 75 Years R/o Village Jognipali, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶12

4. Basant S/o Mitrabhanu, Aged About 65 Years R/o Village Jognipali, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶13

5. Prembai D/o Mitrabhanu, Aged About 70 Years Caste Kotla, R/o Village Pretandih, Post Kendudhar, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶14

6. Bijlibai Mother Of Late Hemkanti, Aged About 45 Years Caste Kolta, R/o Village Bhothaldih, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶15

7. Prakash Mother Of Late Hemkanti, Aged About 30 Years Caste Kolta, R/o Village Kesratal, Post Paikin, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶16

8. Ujli Bai Mother Of Late Hemkanti, Aged About 25 Years Caste Kolta, R/o Village Kesratal, Post Paikin, Tahsil Saraipali, District Mahasamund, Chhattisgarh

¶17

9. State Of Chhattisgarh, Through The Collector, Mahasamund, Chhattisgarh, District : Mahasamund, Chhattisgarh

¶18

---- Respondent

¶19

For Appellants : Mr. Kshitij Sharma, Advocate For State : Mr. R.M. Solapurkar, Government

¶20

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

¶21

05.12.2023

¶22

1 Heard on I.A. No. I, an application under Section 5 of the Limitation Act.

¶23

¶24

2 Learned counsel for the appellants would submit that though the appellants contested the appeal before the learned Court below through their counsels, no information was provided by those counsels with respect to the judgment and decree passed against them and when they received the information they immediately rushed to this Court and preferred the second appeal. He would further submit that the appellants are residents of a rural area (Saraipali) and they are not aware of the law of limitation applicable in the second appeal or first appeal. Thus, he would pray that the application (I.A. No. 1) may be allowed.

¶25

3 On the other hand, learned counsel for the State would oppose.

¶26

4 Taking into consideration the delay of 264 days and the reasons assigned in the application, the same is hereby allowed and the delay caused in filing the appeal is hereby condoned.

¶27

5 This is the Second Appeal that has been preferred against the judgment and decree passed by learned Additional District Judge Saraipali, District - Mahasamund in Civil Appeal No. 04A/2016 on 15.03.2016 whereby the appeal preferred by the plaintiffs was allowed and judgment and decree passed by the learned Civil Judge Class I, Saraipali in Civil Suit, No. 37A/2014 was modified.

¶28

6 Facts of the present case are that the plaintiffs/respondents No. 1 and 2 and defendants No. 1 and 2/respondents No. 3 and 4 are real brothers, defendant No. 3/respondent No. 5 is sister and defendant No. 4/respondent No. 6 and defendant No. 6/respondent No. 8 are the son and daughter of late Hemkanti, who was sister of plaintiffs. The suit property is ancestral property and it was not partitioned between them. An application for partition was filed before the Tahsildar, Saraipali and an order was passed for the partition of the lands between them against which an appeal was preferred and the same was dismissed thereafter revision was preferred and the same was pending before the Additional Commissioner, Raipur. During that period, defendants No. 1 and 2 sold land bearing Survey No. 632 ad-measuring 0.28 hectares through a registered sale deed to defendants No. 8 & 9 which was executed on 04.06.2011. Thereafter, a Civil suit was filed for declaration that the sale deed dated 04.06.2011 be declared null and void, partition, possession and permanent injunction. Defendants No. 1 to 6 filed their written statements and denied the plaint averments. It was specifically pleaded that there was a partition between the parties during the lifetime of their father Mitrabhanu. The defendants No. 8 & 9/appellants filed their written statement and took a plea that

¶29

¶30

they are bonafide purchasers and they purchased the suit property from defendants No. 1 and 2 after payment of the consideration amount.

¶31

7 On due consideration, the learned Trial Court vide judgment and decree dated 08.12.2015 partly decreed the suit in favour of the plaintiffs but it is held that the appellants No. 1 and 2 are the substantial owners of the property and they had the right to alienate the same. It is further held that the property sold by defendants No. 1 and 2 to the defendants No. 8 and 9 shall be adjusted from their shares. Against that judgment and decree, an appeal was preferred and the same was modified up to some extent but the finding with regard to Survey No. 632 ad-measuring 0.28 hectares which was sold to the defendant No. 8 and 9 remained the same.

¶32

8 Learned counsel for the appellants/defendants No. 8 and 9 would submit that the learned Courts below ought to have held that the property is already sold to them therefore; there was no need to hold that the property should be adjusted from the shares of defendants No. 1 and 2. He would further submit that up to that extent, the judgment and decree passed by the Courts below may be interfered with.

¶33

9 On the other hand, counsel for the State would oppose.

¶34

10 I have heard learned counsel appearing for the parties and perused the record.

¶35

11 From a perusal of the record, it appears that there is no decree against defendants No. 8 and 9/appellants. The learned Courts below relying upon the registered sale deed executed in favour of defendants No. 8 and 9 by defendants No. 1 and 2 categorically directed to adjust that part of the grant from the shares of defendants No. 1 and 2 and the rights of defendants No. 8 and 9 have already been secured by the learned Courts below.

¶36

12 The Hon’ble Supreme Court in the matter of Banarsi and others v. Ram Phal reported in (2003) 9 SCC 606 in paras 6 and 8 held as under:-

¶37

“6. The appeals raise a short but interesting question of frequent recurrence as to the power of the appellate court to interfere with and reverse or modify the decree appealed against by the appellants in the absence of any cross-appeal or cross-objection by respondent under Order 41 Rule 22 of the CPC and the scope of power conferred on appellate court under Rule 33 of Order 41 of the CPC.

¶38

8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree

¶39

¶40

passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand v. Gopal Lal¹ , Jatan Kumar Golcha v. Golcha Properties (P) Ltd.² and Ganga Bai v. vijay Kumar³ .) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.”

¶41

13 From a perusal of the judgment and decree passed by the learned Courts below, it appears that the appellants herein are not prejudicially or adversely affected by the decree; therefore, the appeal preferred by them is not maintainable in the eyes of law. In light of the judgment rendered by the Hon’ble Supreme Court in the matter of Banarsi (supra), this appeal fails and is hereby dismissed.

¶42

Sd/-

¶43

(Rakesh Mohan Pandey) Judge

¶44

siddhant

Shekhar Agrawal v. Harihar

Case brief

What is this about?

What did the court decide?

Shekhar Agrawal v. Harihar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

(Died), Chamely Bai Through LRs. Vs Smt. Chandrika Bai

Lakhan Lal Thakur Vs State of Chhattisgarh

Gopiram Sahu Vs Bhagirathi Sahu

Ravindranath Tiwari (Dead) Vs Sunil Jaiswal

Smt. Lovedhi Yadav Vs Lukeshwar Kumar Yadav

Dronacharya Deshmukh Vs Smt. Kiran Bai