In this second appeal regarding a suit for partition of land in Chhattisgarh, the High Court dismissed the appeal, finding no substantial question of law as the appellant failed to prove the disputed property was joint family assets acquired from sale proceeds shared post-partition.
Second appeal dismissed; judgment and decree dated 31.01.2019 affirmed.
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
SA No.213 of 2019
Gopiram Sahu S/o Bhagirathi Sahu, Aged About 49 Years Occupation - Labour, R/o Village Kamharia, Tahsil Berla And District Bemetara Chhattisgarh. Presently R/o Village Sarora, District Raipur Chhattisgarh. (Plaintiff ), District : Raipur, Chhattisgarh
---- Appellant/plaintiff
Versus
1. Bhagirathi Sahu S/o Shivbagas Sahu Aged About 70 Years R/o Village Bargaon, Tahsil Berla And District Bemetara Chhattisgarh., District : Bemetara, Chhattisgarh
2. Ishwar, S/o Bhagirathi Sahu, Aged About 35 Years R/o Village Bargaon, Tahsil Berla And District Bemetara Chhattisgarh., District : Bemetara, Chhattisgarh
3. State Of Chhattisgarh, Through Collector, Bemetara District Bemetara Chhattisgarh., District : Bemetara, Chhattisgarh
---- Respondents/Defendants
For Appellant/Plaintiff : Mr. B.L. Dembra, Advocate For State/Respondent : Mr. R.M. Solapurkar, G.A.
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment
04.12.2023
2) This second appeal has been preferred by the appellant/plaintiff against the judgment and decree dated 31.01.2019 passed by the learned District Judge Bemetara, District Bemetara (C.G.) in Civil Appeal No.60-A/2018 whereby the appeal preferred by the appellant/plaintiff was dismissed and the judgment dated 16.04.2018 passed by the learned First Civil Judge Class-II Bemetara, District Bemetara (C.G.) in Civil Suit
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No.36-A/2017 was affirmed.
3) The facts of the present case are that a civil suit was filed by the appellant/plaintiff for declaration of title, partition and possession against the defendants No.1 & 2 who are his father and brother with regard to the land described in the schedule situated in Village-Matia, Tehsil-Berla, District Bemetara (C.G.). The plaintiff pleaded that defendant No.1/Bhagirathi Sahu acquired certain lands in the partition from his brother namely, Chetram. Defendant No.1 sold part of the suit property to other persons and the remaining 8 acres of land was partitioned between the plaintiff and defendant No.2. It is further pleaded that without any legal necessity, some of the plots were sold by defendant No.1 and even despite the objection, the defendant No.1 sold some more plots and thereafter a legal notice was served and a civil suit was filed by the plaintiff. Defendants No.1 & 2 filed their written statement and took a plea that there was a partition between the plaintiff and defendants No.1 & 2. It is further stated that though the property was recorded in the name of defendants No.1 & 2 after the partition, the plaintiff sold his entire share and after receiving the consideration left the village. It is further stated that defendant No.2 purchased some plots in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) from his own income and therefore, the plaintiff has no right over the plots situated in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) which is the suit property. Learned Trial Court framed issues and held that 4.98 acres and 4.79 acres of land situated in Village-Khamhariya, Tehsil-Berla, DistrictBemetara (C.G.) were the ancestral property of the plaintiff and
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defendants No.1 & 2; the plaintiff could not prove that he has right over survey Nos. 561 & 563 total 2.40 hectares up to the extent of 1/3rd share; the plaintiff could not prove that he has the right to get 1/3rd share and possession of survey Nos. 561 & 563; the plaintiff has sold the ancestral property received in partition prior to the year 1995 and also received consideration and thus, the learned trial Court dismissed the suit.
4) In the appeal, the learned District Judge vide judgment dated 31.01.2019 dismissed the appeal and affirmed the findings recorded by the learned Trial Court.
5) Learned counsel appearing for the appellant/plaintiff would submit that there was no partition between the plaintiff and defendants No.1 & 2 and the defendants No.1 & 2 could not substantiate the factum of partition between them, therefore, the findings recorded in this regard are perverse. He would further argue that the suit property was never recorded in the name of the plaintiff and his share was sold by defendant No.1 himself which is the admitted fact and the plaintiff never received the consideration. He would also submit that when defendant No.2 purchased the property in Village-Matia (Bargain), Tehsil-Berla, District Bemetara (C.G.) which is the suit property, he was minor and he had no source of income, therefore, the findings recorded by the learned Courts below in this regard are also incorrect. He would further contend that the suit property situated in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) was purchased from the income of the joint family
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property, therefore, the plaintiff, as well as defendants No.1 & 2, have equal rights.
6) On the other hand, learned counsel for the State would support the judgment passed by the learned Courts below.
7) I have heard learned counsel appearing for the parties and perused the records.
8) From a perusal of the record, it is quite clear that 8 survey numbers, area 4.98 acres and 13 survey numbers, area 4.79 acres were recorded in the names of defendants No.1 & 2. Earlier, the property was recorded in the name of the father of Chetram and Bhagirathi and after his death, the property was recorded in the name of Sonabai, mother of Bhagirathi and Chetram. After the death of Sonabai, property was recorded in the name of Chetram and Bhagirathi. Bhagirathi and Chetram sold certain parts of the property through registered sale deeds to various persons and therefore, an objection was raised by the plaintiff. Defendants No.1 & 2 have no other source of income except agriculture and defendant No.1 sold certain plots situated in Village-Khamhariya, Tehsil-Berla, District Bemetara (C.G.) and purchased survey Nos. 561 and 563 ad-measuring 1.84 and 0.56 hectares in Village Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) in the name of defendant No.2. The plaintiff has claimed right over the land situated in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) on the ground that it was purchased from the joint family income.
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Chetram sold certain parts of the ancestral property and in the partition, he got 8 acres of land and it was partitioned between the plaintiff and defendant No.1 equally. The plaintiff sold his share prior to the year 1995 and registered sale deeds were executed by defendant No.1 himself and this fact has remained uncontroverted. In the year 1995, the plaintiff shifted to another village namely, Sarora, District-Raipur (C.G.) and a civil suit was filed after 20 years. In between, defendant No.2 sold his share and purchased two plots bearing survey Nos. 561 and 563 in Village-Matia, (Bargaon), Tehsil-Berla, District Bemetara (C.G.) and the plaintiff has claimed equal rights over that property.
10) From a perusal of the plaint, it is apparent that the plaintiff has pleaded that the suit property was purchased with the aid of the joint family funds but no documentary evidence was adduced in support of the above contention. It is a well-settled principle of law that the burden of proving the fact that any particular property is the joint family property in the first instance is upon the person, who claims it to be sold.
11) In the present case, the plaintiff could not prove that the property situated in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) was not purchased by defendant No.2 from his own income and it is the joint property. Defendant No.2/Ishwar has stated that there was a partition between the plaintiff and defendant No.2 15-20 years ago and the plaintiff sold his share and settled in Village-Sarora, District-Raipur (C.G.). DW-3/Ramdulari Sahu has supported the evidence of DW-2/Ishwar Sahu. DW-7/Tirathram Sahu in his cross-examination has
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admitted the fact that he had purchased the share of the plaintiff. DW4/Udhoram Sahu, DW-5/Chetram and DW-6/Gayaram have admitted the factum of the partition between the plaintiff and defendant No.2. They have also stated in their evidence that the consideration was received by the plaintiff. The plaintiff has admitted the fact that the land which fell in his share was recorded in the name of his father and the same was sold by him. He has further admitted that his brother defendant No.2/Ishwar is carrying out agricultural work in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) which is his source of income. The plaintiff could not produce any document to demonstrate that the suit property situated in Village-Matia (Bargaon), Tehsil-Berla, District Bemetara (C.G.) was purchased from the income of the joint family even though registered sale deeds have not been produced. The suit property was recorded in the name of defendant No.2 in the year 2009-10 and there is no evidence to establish the date of purchase of suit land by defendant No.2. The plaintiff could not prove that at the time of purchase of the suit property, the defendant No.2 was minor and he had no source of income. In the absence of evidence, the plaintiff cannot be held entitled to claim 1/3rd share over the suit property.
12) The Hon’ble Supreme Court in the matter of Hasmat Ali v. Amina Bibi and others (Civil Appeal No.7109 of 2021 arising out of SLP(C) No.25119 of 2019) decided on 29.11.2021 in para-14 held that:-
“14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does
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not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.”
13) Taking into consideration the law laid down by the Hon’ble Supreme Court in the matter of Hasmat Ali (supra) and the facts discussed above and also going through the concurrent findings recorded by the Courts below, I do not find any substantial question of law in the present appeal. Accordingly, the present appeal fails and is hereby dismissed.
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(Rakesh Mohan Pandey) Judge
Rekha
3 issues framed by the court
Whether, despite failure to prove the suit property was joint family property, substantial question of law exists to quash lower courts' findings on partition and sale share.
Whether the first appellate court erred in affirming the trial court's dismissal of the suit for declaration and partition.
Whether the appellant is entitled to 1/3rd share in property purchased by a minor defendant from family income.
Colour shows how this judgement treated each authority
Hasmat Ali v. Amina Bibi and othersExplained¶37
Hasmat Ali v. Amina Bibi and others (Civil Appeal No.7109 of 2021 arising out of SLP(C) No.25119 of 2019)
Gopiram Sahu
Bhagirathi Sahu
Ishwar
State Of Chhattisgarh
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
