Dismissed

Ramesh Kumar Rawal and Ors. v. Himmat Lal Rawal and Ors.

Chhattisgarh HC7 Jan 2024SA/125/2014

Case brief

AI extract

What is this about?

Second appeal under Section 100 CPC over a kutcha house claimed by plaintiff as his share from a family partition of 1942. Concurrent findings of both lower courts upheld based on admissions and documents; substantial question answered negatively.

What did the court decide?

Appeal dismissed; decree already granted to plaintiff for declaration of title and permanent injunction stands affirmed; no costs ordered.

Ramesh Kumar Rawal and Ors. Vs Himmat Lal Rawal and Ors. — Partition | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 125 of 2014

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1. Ramesh Kumar Rawal, S/o Late Vishwanath Rawal Aged About 50 Years R/o Shubham Vihar, Bilaspur, Tah. And Distt. Bilaspur C.G., Chhattisgarh.

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[Defendant No.2]

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2. Leelawati W/o Late Vishwanath Rawal Aged About 68 Years R/o Shubham Vihar, Bilaspur, Tah. And Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh.

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3. (Died) Kishore Kumar Rawal S/o late Vishwanath Rawal, aged about 47 years , amended As Per Hon'ble Court Order Dated. 31-10-2023, through LRs:

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3(a). Smt. Shashi Rawal, Wife of Late Kishore Kumar Rawal, Aged About 45 Years Resident of Durga Electricals, Main Road, Kota, District - Bilaspur, Chhattisgarh.

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3(b). Kalika Rawal, Daughter of Late Kishore Kumar Rawal, Aged About 16 Years Minor Represented Through Mother Smt. Shashi Rawal. Resident Of Durga Electricals, Main Road, Kota, District - Bilaspur, Chhattisgarh.

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4. Chandra Trivedi, W/o Dilip Trivedi, Aged About 48 Years, D/o Late Vishwanath Rawal, R/o Near Gupteshwar Temple, Jabalpur, District : Jabalpur, Madhya Pradesh. ----Appellants

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Versus

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1. Himmat Lal Rawal, S/o Nana Lal Aged About 62 Years R/o Station Road, Kota, Tah. Kota, Distt. Bilaspur C.G., Chhattisgarh.

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[Plaintiff]

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2. LRs of Defendant No.1/Narmada Shankar:

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2A) Jasumati Rawal W/o W/o Late Narmada Shanker Aged About 80 Years,

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2B) Vijay Kumar Rawal W/o S/o Late Narmada Shanker Aged About 51 Years ,

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2C) Meena D/o Late Narmada Shanker Aged About 57 Years,

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2D) Neelu D/o Late Narmada Shanker Aged About 54 Years,

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2E) Reeta D/o Late Narmada Shanker Aged About 48 Years,

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2F) Sudha, D/o Late Narmada Shanker Aged About 47 Years,

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All are R/o Ranimahal Road, Near Chitra Talkies, Behind Gayatri Mandir, Korba, Tahsil and District Korba, Chhattisgarh.

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3. Durga Shankar, S/o Mani Shankar, Aged About 61 Years, [Defendant No.3]

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4. Jagdish Rawal, S/o Mani Shankar, Aged About 35 Years, [Defendant No.4]

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5. Babloo, S/o Mani Shankar, Aged About 32 Years, [Defendant No.5]

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6. Dabloo, S/o Mani Shankar, Aged About 32 Years, [Defendant No.6]

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Respondents No. 3 to 6 are R/o Station Road, Kota, Tahsil Kota, DistrictBilaspur, Chhattisgarh. ---- Respondents

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(Cause Title is taken from Case Information System)

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For Appellants : Mr. Ram Kumar Tiwari, Advocate For Respondents : Mr. Pravin Kumar Tulsyan, Advocate with Mr. Karan Bahrani, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board

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08.01.2024

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1. Vide order dated 17.07.2023, this appeal was admitted on the following substantial question of law:-

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“Whether both the Courts below committed error of law in granting decree of declaration and injunction holding that the suit property fell into the share of father of the plaintiff in a partition ignoring the sale deed (Ex.D/1) and evidence in this regard?”

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1. Defendant No. 2 has preferred this appeal under Section 100 of the Civil Procedure Code (for short, the CPC), against the judgment and decree dated 03.01.2014, passed by the learned III^rd Additional District Judge, Bilaspur, Chhattisgarh in Civil Appeal No. 48A/11, whereby the judgment and decree passed by the learned Civil Judge Class-II, Kota, has been affirmed.

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1. The family pedigree of the plaintiff is as under:-

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Motilal (died 28.10.1943)

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wife- Smt. Santosh Rawal (died 27.04.1973)

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Phoolshankar (died 03.10.1987) Manishankar (died 1983)) Nanalal (died 26.01.1954)

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Himmatlal (plaintiff)

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Narmadashankar Vishwanath Harishankar

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(Def. No.1) (Def. No.2) (dead)

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Durgashankar Jagdish Babloo Dabloo (Def. No.3) (Def. No.4) (Def. No.5) (Def. No.6)

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1. The facts of the present case, are that the plaintiff/respondent No.1 filed a civil suit for declaration of title and permanent injunction over a kutcha house situated at KotaLormi Road, Village Kota, Tehsil- Kota, Bilaspur, bearing survey No.617, ad-measuring 1750 sq. ft. inter alia on the ground that the suit house fell in his share and he is in possession of the suit property since 1942.

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1. It is further pleaded that Motilal was his grandfather who died on 28.10.1943 and during his lifetime in the year 1942, he had partitioned the two suit houses between Phoolshankar, Manishankar and Nanalal. Phoolshankar and Nanalal were staying in the suit house, whereas Manishankar was staying separately. In the year 1970, one more house was purchased by the grandmother of the plaintiff, namely, Smt. Santosh Raval and the same was handed over to Phoolshankar. It is further pleaded that all, Manishankar, Phoolshankar and the plaintiff were staying separately in their respective houses. The defendants filed their written statements and denied the plaint averments and stated that in the year 1970, Phoolshankar purchased a separate house. It is also pleaded that there were two houses, one owned by Motilal was given to Manishankar, and another was in possession of Phoolshankar and Himmatlal, S/o Nanalal, therefore, the averments made by the plaintiff that there were two houses, and Phoolshankar, Manishankar and Himmat Lal were given one house in share, is an incorrect statement. It is further pleaded that Phoolshankar and Himmatlal/plaintiff were staying in a house which was given to them in partition; therefore, both have equal rights in the said house.

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1. The learned trial Court framed issues and held that the plaintiff is the owner and title holder of the suit house situated at Ward No.13, Survey No. 617, ad-measuring 1750

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sq. ft. and also granted the decree of permanent injunction.

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1. The learned trial court relied on the evidece of Narmada Shankar (DW/1) and Durga Shankar (DW/2). It is further held that Durga Shankar (DW/2) has stated that at present there are 3 houses in Kota in the name of his family. The abadi plot bearing survey No. 400 was purchased in the name of Phoolshankar, and in that house, Vishwanath Rawal and his family reside. In the second house, Manishankar stays with his family and in the third house; the plaintiff stays along with his family.

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1. The learned trial Court further held that vide Ex.D/2 - Panch Rojkam, it is nowhere stated that any property was given to the plaintiff in Gujarat at Motadarva , even the description of the property is not given. The learned trial Court taking into consideration the evidence available on record decreed the suit filed by the plaintiff and the learned first appellate Court also affirmed the findings recorded by the learned trial Court.

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1. Mr. Ram Kumar Tiwari, learned counsel appearing for the appellant/defendant No.1, would submit that there were only two houses, one house was given in partition to Manishankar and in another house, Phoolshankar and Nanalal were residing. He would further submit that the third house came into existence in 1970 and the same is evident from Ex.D/1, when Phoolshankar purchased a house through a registered sale deed. He would further argue that in the second house, which was in a share of Phoolshankar, Nanalal and Himmatlal were residing and they had joint rights over the property.

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1. On the other hand, Mr. Pravin Tulsyan, learned counsel appearing for respondent No.1/ plaintiff would submit that initially, there were two houses, but in the year 1970, one more house was purchased by the grandmother of the plaintiff in the name of Phoolshankar and the legal heirs of Phoolshankar, Manishankar and Nanalal are staying in a separate house. He would further argue that Narmadashankar/defendant No.1 and the appellant/defendant No.2 have categorically admitted the fact that the partition took place in the year 1942 and at that time, there were two houses. Later on, in the year 1971, one more house was purchased and the legal hairs of Phoolshankar,

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Manishankar and Nanalal stayed in their respective shares, and there was no dispute in this regard. He would also submit that there is a concurrent finding recorded by the learned Courts below and on the basis of Ex.D/1, defendant No.2 never raised any claim over the suit property, and he never denied the right of the plaintiff over the suit land. He would also argue that when the plaintiff claimed right over suit property which is in his possession, the defendant failed to file a counter claim.

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

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1. The plaintiff has claimed right over the suit house on the ground that it fell in the share of his father namely Nanalal. Indisputably, there were two houses during the lifetime of Motilal, father of Phoolshankar, Manishankar and Nanalal. In one house, Manishankar was residing, whereas, in another house, Phoolshankar and Nanalal were residing. Nanalal died on 26.01.1954 and Motilal died on 28.10.1943. At that time, the wife of Motilal, Smt. Santosh Rawal was alive and she was also staying in the house which fell in share of Nanalal.

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1. The plaintiff is making payments of electricity bills, property tax and other bills. In the year 2003, the defendants tried to dispossess the plaintiff; therefore, the suit was filed. It was also stated that a separate house was purchased by Smt. Santosh Rawal for Phoolshnakar vide Ex.D/1 dated 22.07.1970 and he was staying along with his family in that house till his death on 03.10.1987 however no objection was raised during his lifetime.

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1. The learned trial Court relied upon the admission of defendant No. 3/Durgashankar, who categorically stated in cross-examination that there are three houses in the name of his family at Kota. The house situated over abadi plot No. 400 was given to Phoolshankar. In another house, the family of Manishankar is residing and in the third house, the plaintiff resides along with his mother and sister.

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1. The learned trial Court further relied on documents Ex.P/1 to Ex.P/66-certificates issued by the Nagar Palika Parishad, Kota, demand notice, electricity bills and sale deed. These documents (Ex.P/66 to Ex.P/66) prove that the suit house was purchased

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by Motilal and in all the exhibited documents produced by the plaintiffs, his name is mentioned.

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1. It is also held by the learned trial Court that the plaintiff has been staying in the house for the last 60 years and no objection was raised by the defendant. With regard to the share given to the plaintiff at Motadadva, Gujarat, no document has been produced and thus, the learned trial Court decreed the suit. The learned first appellate Court affirmed the finding recorded by the learned trial Court.

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1. The document (Ex.D/1) was produced by Vishwanath Rawal (PW/1), but he has not stated anywhere that the suit house was purchased by Phoolshankar from his own income and it is not a property purchased by grandmother/Smt. Santosh Rawal. In para 26 of the cross-examination, he stated that after partition, the father of the plaintiff along with his family started residing in the suit house.

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1. Durgashankar Rawal (DW/2) in para-11 of the cross-examination has stated that Vishwanath never resided in the suit house. In para-14 he has stated that since his lifetime, the plaintiff has been staying in the suit house along with family. In para-16, he admitted that there are three houses in the name of his family. The house situated over abadi plot No. 400 was purchased in the name of Phoolshankar and in that house; Vishwanath Rawal and his family are staying. In the second house, Manishankar’s family has been residing for the last 30-40 years. In the third house, the plaintiff is staying along with his family. In para-17, he stated that there is a separate arrangement of residence and against such arrangement no action was taken by them. It is further stated that the house was allotted by her grandmother and the same was accepted by them. It is also stated that the plaintiff has no right to interfere with the prevailing arrangement and the same is denied for many years.

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1. From the above piece of oral and documentary evidence, it is quite vivid that the suit house was given in share to the father of the plaintiff, in which, the plaintiff and his family are staying. The house mentioned in Ex.D/1 was given in share to Phoolshankar in which his legal representatives are staying and it has not been proved that the suit

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house was purchased by Phoolshankar from his own income.

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1. In view of the above, the substantial question of law is answered in negative. Accordingly, the appeal sans merit and is hereby dismissed .

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1. A decree be drawn accordingly.

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1. No order as to cost(s).

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Nadim

Ramesh Kumar Rawal and Ors. v. Himmat Lal Rawal and Ors.

Case brief

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Ramesh Kumar Rawal and Ors. v. Himmat Lal Rawal and Ors.

Case brief

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