Allowed

Padamini v. Ishwar and Anr.

Chhattisgarh HC12 Sept 2024SA/79/2012

Case brief

AI extract

What is this about?

Second appeal against a first appellate judgment that set aside a trial court decree granting title and possession of ancestral land to the plaintiff. The High Court held that the first appellate court erred in fact and law by including self-acquired property in the partition calculation and set aside its judgment, restoring the trial court's decree.

What did the court decide?

Set aside the first appellate judgment and restore the trial court's decree granting title and possession.

Padamini Vs Ishwar and Anr. — Property and Title | Chhattisgarh HC (2024)

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Digitally signed by NADIM MOHLE

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2024:CGHC:36037

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 79 of 2012

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Padamini D/o Late Shri Tahalu, W/o Surjan Ram, R/o Pharasakani, Tah- Kunkuri, Dist. Jashpur C.G. Present Address Village Jamchunwa, Tah-Kunkuri, Dist. Jashpur, Chhattisgarh.

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... Appellant/Plaintiff

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versus

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1 – Ishwar, S/o Chhakkan, aged about 62 years, Caste- Rautiya, R/o Pharasakani, Tehsil—Kunkuri, District Jashpur, Chhattisgarh. Appellant/Defendant No.1

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2. Government of Chhattisgarh, through- the Collector Jashpur, District Jashpur, Chhattisgarh. Defendant No.2

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... Respondents

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For Appellant/Plaintiff : Mr . Rishi Rahul Soni, Advocate

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For Respondent No.1 : Mr. Shivam Mishra, Advocate, holding the brief of Mr. Akhilesh Kumar, Advocate,

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For Respondent No.2 : Ms. Nupoor Sonkar, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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13.09.2024

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1. Vide order dated 06.04.2021, the present second appeal was admitted for hearing and the following substantial question of law was framed:-

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“ Whether the first appellate Court was justified in reversing and setting aside the judgment and decree passed by the learned trial Court by recording a finding which is perverse and contrary to record.? ”

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1. The plaintiff has challenged the judgment and decree dated 14.12.2011 passed in civil appeal No.18A/09, whereby the learned Additional District Judge Kunkuri, District Jashpur has set aside the judgment and decree dated 29.06.2009 passed by the learned Civil Judge Class II, District Jashpur in Civil Suit No.48A/2008.

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1. The facts of the present are as under:-

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A. The plaintiff is the daughter of the late Shri Tahlu and Bahri Bai. The suit property was recorded in the name of Chakkan ad-measuring a total of 8.942 hectares (for short, ‘ha.’) situated at village Pharasakani, Tehsil- Kunkuri, District Jashpur. Chhakkan had two sons, namely, Tahlu and Ishwar.

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B. Tahlu had two wives, namely, Budhni and Bahri. The plaintiff is the daughter of Tahlu and Bahri. Ishwar/defendant No.1 is the uncle of the plaintiff.

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C. After the death of Chhakkan, the entire property was recorded in the name of Tahlu and Ishwar.

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D. After the death of Tahlu, the suit property was recorded in the joint names of the appellant/plaintiff and Ishwar/defendant No.1.

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E. The plaintiff came to know about the order of mutation which was passed on 16.06.1996, whereby the suit property was partitioned and most of the suit property was

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recorded in the name of Ishwar/defendant No.1. The petitioner came to know about this fact on 01.04.2006. Thereafter, she preferred an appeal before the Sub Divisional Officer (Revenue) for short, SDO (R), challenging therein the order of mutation and the same was dismissed vide order dated 27.02.2007.

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F. The plaintiff filed a civil suit on 27.04.2007, claiming therein the declaration of title, and confirmation of possession and also challenged the mutation No.17 dated 16.06.1996 passed by the Nayab Tehsildar, Kunkuri to be null and void.

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G. It is pleaded by the plaintiff that the suit property was originally recorded in the name of Chakkan and after his death, she and Ishwar/defendant No.1 became the owner of the suit property, and their names were recorded in the revenue records, but fraudulently defendant No.1 got recorded most of the suit property in his name in the revenue records.

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H. The suit property was partitioned behind the back of the appellant and the major part of the property was recorded in the name of defendant No.1.

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I. It is further pleaded that defendant No.1 got 6.578 hectares out of 8.942 hectares, whereas the share of the plaintiff was 2.364 hectares only. Thus, the plaintiff claimed right over the suit property, confirmation of possession, and equal share in the suit property.

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J. Defendant No.1 filed a written statement and denied the plaint averments. It is pleaded that the order of mutation was passed on 16.06.1996 by Nayab Tehsildar, Kunkuri and the same has been challenged by filing a civil suit on 27.04.2007; thus, the suit is barred by limitation.

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K. It is further pleaded that the suit property was partitioned in the year 1996 itself between the parties by meets and bounds.

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L. It is also pleaded that the property recorded in the name of Budhni bai, who was the first wife of Tahlu, was also recorded in the name of the plaintiff (2.444 hectares) and that property was not disclosed in the plaint.

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M. It is further pleaded that the plaintiff got recorded 2.364 hectares of property in the partition and thus, in her name a total of 4.808 hectares of land is recorded.

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N. The trial court framed issues and held that the partition between the parties was not equal; defendant No. 1 fraudulently recorded his name in the revenue records; and, the order of mutation was passed fraudulently in favour of respondent No.1/defendant No. 1. The plaintiff is entitled to get ½ share in the suit property; the order of mutation No.17 dated 16.06.1996 passed by the Nayab Tehsildar is null and void; the plaintiff is also entitled to get the decree of possession; the suit is within a limitation, and thus, the suit was decreed vide judgment and decree dated 29.06.2009.

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O. Defendant No.1 preferred a first appeal and the judgment and decree dated 29.06.2009 was set-aside on the ground that earlier 2.444 hectares of land had been given to the plaintiff by the first wife of his father and also she got 2.364 hectares of land in the partition, thus, she is in possession of 12 acres of land, and this fact has not been considered by the learned trial Court and thus, set aside the judgment & decree passed by the learned trial Court.

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1. Learned counsel appearing for the appellant would refer to exhibit Ex.P/2, which is the order of mutation (mutation No. 17) passed by the Nayab Tehsildar, Kunkuri. This document would show that there were a total of 9 survey numbers, admeasuring a total of 8.942 hectares, out of which 4 survey numbers, admeasuring 2.364 hectares were recorded in the joint names of the plaintiff and defendant No.1 and 5 survey numbers admeasuring 6.578 hectares were recorded in the name of defendant No.1 alone. He would further submit that the 6 acres of land were the self-acquired property of Budhani Bai and the same was transferred during her lifetime to the plaintiff and her property was not a part of the suit property, therefore, the learned first appellate Court committed an error of law in including the self-acquired property of Budhni Bai. He would also submit that defendant No.1 failed to produce any document to establish that the said 6 acres of land recorded in the name of Budhani was part of the suit land. He would further contend that the learned First Appellate Court has not assigned any reason to disturb the findings recorded by the learned trial Court/Civil Court.

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It is also argued that the suit property was never partitioned between Tahlu and Ishwar and both brothers had equal rights over the suit property and

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after the death of Tahlu, the plaintiff being a legal heir of Tahlu, is entitled to get half share in the suit property; thus, the judgment and decree passed by the learned first appellate Court deserves to be set aside and the judgment and decree passed by the learned trial Court deserves to be restored.

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1. On the other hand, learned counsel appearing for respondent No.1 would oppose and submit that the plaintiff is cultivating 12 acres of land. He would further submit that the plaintiff got 6 acres of land from Budhni Bai and 2.64 hectares of land in partition. He would also submit that defendant No.1 has got a total of 12 acres of land in partition and the share of the plaintiff and defendant No.1 is almost equal.

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He would contend that the order of mutation was passed on 16.06.1996, whereas the suit was filed by the plaintiff on 24.07.2007 (after 11 years), therefore, the suit filed by the plaintiff was barred by the limitation and the trial Court committed an error of law in deciding this issue against the defendant No.1. He would also contend that the learned first appellate Court has passed a well-reasoned order and there is no scope of interference.

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1. Learned State counsel would support the impugned judgment and decree passed by the learned first appellate Court.

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

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From a perusal of Exhibit P/2, which is the order of mutation dated 16.06.1996 passed by the Nayab Tehsildar, Kunkuri, it is apparent that a total of 9 survey numbers were recorded in the name of Tahlu & Ishwar after the death of Chhakkan (their father). The property was partitioned between the plaintiff and defendant No.1 vide order of mutation dated 16.6.1996. In the name of defendant No.1, a total of 6.576 hectares of land was recorded, whereas in the joint names of the plaintiff and defendant No.1, 4 survey numbers, ad-measuring

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2.364 hectares were recorded. In the written statement, defendant No.1 has not explained the reason for such unequal partition between the plaintiff and defendant No.1.

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It is an admitted fact that the suit property was recorded in the name of Chhakkan, who is the father of Tahlu and Ishwar, and after his death, his sons, Tahlu and Ishwar got the property in succession, meaning thereby, they had equal rights over the suit property. After the death of Tahlu, the plaintiff being a daughter became the title holder of the share with her father and her share would be equal to her father, which he would have got, had he lived alive.

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1. With regard to the 6-acres of land, which was recorded in the name of Budhni and was transferred by Budhani herself in favour of the plaintiff, no document has been produced by defendant No.1 to demonstrate that it was part of the suit property. It appears that the same was self-acquired property of Budhani Bai and during her lifetime; she transferred it in the name of the plaintiff. Further, the property which was transferred from Budhani to the plaintiff cannot be included in the suit property, and it cannot be included for the purpose of partition between the parties.

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1. With regard to the issue of limitation, the learned trial Court has categorically held that from the date of knowledge i.e. 01.04.2006, the suit is within limitation as the order of mutation dated 16.06.1996 was passed behind the back of the petitioner. The learned first appellate court has not discussed the issue of limitation, even no substantial question of law has been framed in this regard.

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1. Taking into consideration the above-discussed facts, in the opinion of this Court, the learned first appellate Court has committed an error of law in setting aside the judgment passed by the learned trial Court and thus, the substantial question of law framed in the present second appeal is answered in favour of the

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plaintiff and against defendant No.1. Accordingly, this second appeal succeeds and same is hereby allowed . The Judgment and decree passed by the learned first appellate Court is hereby set aside and the judgment and decree passed by the learned trial Court/Civil Court is hereby restored . A decree be drawn accordingly.

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No order as to cost.

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Sd/- (Rakesh Mohan Pandey) Judge

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Nadim

Padamini v. Ishwar and Anr.

Case brief

What is this about?

What did the court decide?

Padamini v. Ishwar and Anr.

Case brief

What is this about?

What did the court decide?

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