Allowed

Ganesh Prasad v. Bhagat

Chhattisgarh HC11 Dec 2023SA/6/2006

Case brief

AI extract

What is this about?

In this second appeal concerning partition and declaration of title, the High Court found that the First Appellate Court erred by decreeing ownership of the entire 0.10 decimal land in favor of the plaintiffs. The High Court held that since both parties got 0.05 decimal each in partition, the suit appeal is allowed, and title is declared for respective shares.

What did the court decide?

The judgment and decree of the First Appellate Court are set aside; plaintiffs and defendants are entitled to 0.05 decimal share each; the boundary map is part of the decree.

Ganesh Prasad Vs Bhagat — Partition | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No.6 of 2006

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1. Ganesh Prasad S/o Bharat Aged About 56 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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2. Lakhan (Died) Through Lrs As Per Honble Court Order Dated 08-062021.

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2.1 - Tetri Bai Wd/o Late Lakhan Lal Aged About 74 Years R/o Rajendra Nagar, Bilaspur, Tahsil And District Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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2.2 - Ranjeeta Suryavanshi D/o Late Lakhan Lal, W/o Rajeev Suryavanshi Aged About 29 Years R/o Rajendra Nagar, Bilaspur, Tahsil And District Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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3. (A) Kali Bai Wd/o Makhanlal Aged About 68 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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(B) Anil Kumar S/o Makhanlal Aged About 43 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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(C) Akash S/o Makhanlal Aged About 33 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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(D) Ashish S/o Makhanlal Aged About 31 Years Minor Through The Guardian Mother Kali Bai. R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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(E) Suraj S/o Makhanlal Aged About 29 Years Minor Through The Guardian Mother Kali Bai. R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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(F) Rani W/o Ajit Aged About 34 Years R/o Village - Belmundi, Police Station Hirri, Tehsil Takhatpur, District Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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4. Jeevrakhan S/o Sukhru Aged About 66 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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---- Appellants/Defendants

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Versus

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1. Bhagat S/o Shyamlal Aged About 58 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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2. Narayan S/o Shyamlal Aged About 71 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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3. Gambhir S/o Shyamlal Aged About 63 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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4. Smt. Pacho Bai D/o Shyamlal Aged About 65 Years R/o Village - Mangala, Tehsil And Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh

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5. State Of Chhattisgarh Through The Collector, Distt. Bilaspur., District : Bilaspur, Chhattisgarh

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---- Respondents/Plaintiffs

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For Appellants/Defendants	:	Mr. H.B. Agrawal, Senior Advocate
		along with Ms. Sandhya Rao, Advocate
For Respondents No.1 to 4/	:	Mr. A.S. Rajput, Advocate
Plaintiffs No.1 to 4
For State/Respondent No.5	:	Ms. Seema Dixit, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey Judgment

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11.12.2023

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1) The appeal is admitted for hearing on the following substantial

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question of law:-

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“Whether the First Appellate Court is justified in granting decree for declaration of title in Khasra No.908 area 0.10 decimal ignoring the fact that it is an admitted position of record that Shyamlal and Sukhru, each of them, got 0.05 decimal in partition by recording a finding perverse to the record ?”

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2) This second appeal has been preferred by the appellants/defendants against the judgment and decree dated 28.10.2005 passed by the learned Additional District Judge, Bilaspur (C.G.) in Civil Appeal No.13-A/2002 whereby the judgment and decree passed by the learned Civil Judge Class-I, Bilaspur (C.G.) in Civil Suit No.89-A/2001 was set aside and the appeal was allowed.

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3) The facts of the present case are that the plaintiffs/respondents No.1 to 4 filed a civil suit for declaration of title, permanent injunction and

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possession with regard to survey No. 908 ad-measuring 0.10 decimal situated in Village-Mangala, Tehsil and District-Bilaspur (C.G.) on the ground that the property is the ancestral property which was recorded in the names of Shyamlal and Sukhru, fathers of the plaintiffs and the defendants. There was a partition between Shyamlal and Sukhru and Shyamlal got 0.05 decimal of land on the back-side whereas Sukhru got 0.05 decimal of land on the front-side as shown in the map appended to the plaint. There was a dispute between the parties with regard to the open passage which was being used by both the parties. The appellants/defendants restrained the plaintiffs from using the path as well as interfered with the peaceful possession of the plaintiffs therefore a civil suit was filed. Learned Trial Court held that the plaintiffs are not the owners and possession holders of the suit property; they have not perfected their title over the path on the basis of the adverse possession; the defendants have closed the path and the plaintiffs are not entitled to get the decree of the permanent injunction and title and thus dismissed the suit.

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4) An appeal was preferred by the plaintiffs and the learned First Appellate Court decreed the suit and declared the plaintiffs’ ownership over the entire survey No. 908 ad-measuring 0.10 decimal of land on the ground that the suit property fell in share of the plaintiffs. The appellants/defendants were directed to hand over the vacant possession of the suit property and the plaintiffs were held entitled to use the path and the decree of permanent injunction was also passed.

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5) Learned Senior counsel appearing for the appellants/defendants would submit that undisputedly the entire property recorded in the names of Shyamlal and Sukhru was 0.10 decimal of land and there was a partition between them and in para 4 of the plaint it is an admitted fact. He would further submit that the parties were in possession of their respective shares and there was some dispute with regard to the open passage which was being used by both the parties. He would also submit that the learned First Appellate Court has granted the decree of title in favour of the plaintiffs holding that the suit property fell in share of the plaintiffs whereas there are no any averments in this regard either in the plaint or in the written statement. Therefore, he would submit that the judgment passed by the learned First Appellate Court is perverse and erroneous.

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6) On the other hand, learned counsel appearing for the plaintiffs/respondents No.1 to 4 would oppose. Mr. Rajput would submit that the learned First Appellate Court rightly decreed the suit in favour of the plaintiffs. He would further submit that undisputedly the plaintiffs were in possession of 0.05 decimal of the land and 0.05 decimal of land was within the possession of the defendants.

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7) Ms. Seema Dixit, learned Panel Lawyer appearing for the State would support the judgment passed by the learned Courts below.

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8) I have heard learned counsel appearing for the parties and perused the records.

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9) From a perusal of the records, it appears that 0.10 decimal of land

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was recorded in the joint names of Shyamlal and Sukhru who are the fathers of the plaintiffs and defendants and later on, it was partitioned between them and both the brothers got 0.05-0.05 decimal of land. In para 4 of the plaint, the plaintiffs have categorically stated that there was a partition between the parties and both the parties got 0.05-0.05 decimal of land bearing survey No. 908 ad-measuring 0.10 decimal situated in Village-Mangala, Tehsil and District-Bilaspur (C.G.). The defendants in their written statement have also categorically stated that there was a partition between them and the defendants got 0.05 decimal of land in the partition.

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10) From a perusal of the judgment passed by the learned First Appellate Court, it appears that the decree has been granted in favour of the plaintiffs with regard to the entire suit land bearing survey No. 908 ad-measuring 0.10 decimal on the ground that it fell in the share of the plaintiffs. The findings recorded by the learned First Appellate Court appear to be erroneous as there are no pleadings either by the plaintiffs or by the defendants that 0.10 decimal of land bearing survey No. 908 fell in the share of the plaintiffs. The findings recorded in this regard and the judgment and decree passed by the learned First Appellate Court appear to be erroneous and contrary to the evidence available on record. Consequently, the judgment and decree passed by the learned First Appellate Court is hereby set aside. It is held that the plaintiffs as well as defendants No.1 to 4 shall be entitled to get 0.05-0.05 decimal share each in the suit property and both the parties shall be entitled to get the title as well as the possession of their respective shares. The substantial

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question of law is answered in the affirmative in favour of the appellants/defendants. Accordingly, the appeal is allowed.

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11) The path as shown in the map shall be used by both the parties and the map shall be part of the decree.

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12) A decree be drawn accordingly.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Rekha

Ganesh Prasad v. Bhagat

Case brief

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Ganesh Prasad v. Bhagat

Case brief

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