Kailash Kalar (Sinha) Vs Thanu Kalar

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Digitally signed by AYUSHI AYUSHI SINGH SINGH Date: 2025.07.26 12:31:26 +0530

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2025:CGHC:35587

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 103 of 2021

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1 - Kailash Kalar (Sinha) S/o Shri Thanu Kalar, Aged About 42 Years R/o Village - Mudi Bhawar, Tahsil - Magarlod, District - Dhamtari Chhattisgarh.

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versus

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1 - Thanu Kalar S/o Late Dashrath Kalar, Aged About 62 Years R/o Village - Atarmara, R.N.M. Chhura, Tahsil Chhura, District Gariyaband Chhattisgarh.

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2 - Smt. Rewati Bai, Aged About 40 Years R/o Village - Atarmara, R.N.M. Chhura, Tahsil Chhura, District Gariyaband Chhattisgarh.

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3 - Smt. Heera Bai, W/o Shri Shriram Kalar Aged About 44 Years R/o Village Bhothidih , Tahsil Magarlod, District Dhamtari Chhattisgarh.

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4 - Smt. Hiraundi Bai W/o Shri Jagdev Kalar, Aged About 33 Years R/o Village -Pacheda, Tahsil Abhanpur, District Raipur Chhattisgarh.

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5 - Smt. Dulaurin Bai, W/o Shri Narad Kalar Aged About 30 Years R/o Village Kurekera, Tahsil Chhura, District Gariyaband Chhattisgarh.

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6 - State Of Chhattisgarh Through The Collector, District Gariyaband Chhattisgarh.

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... Respondents

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For Appellant : Mr. Kshitij Sharma, Advocate along with Ms. Laxmi Gupta, Advocate
For Respondents No.1 & 2 : Mr. A.D. Kuldeep, Advocate
For Respondent No.6/ State : Ms. Mandvi Bhardwaj, PL
For Respondents No. 3 to 5 : None though served

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(Hon’ble Shri Justice Naresh Kumar Chandravanshi)

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Judgment on Board

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23/07/2025

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This first appeal has been preferred by the appellant/plaintiff under Section 96 read with Order 41 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 31.8.2021 (Annexure-A/1) passed by Upper District Judge, Gariyaband (CG) in Civil Suit No.25A/2015, whereby civil suit filed by the appellant/plaintiff, has been dismissed. The suit was filed for declaration of his 1/6^th , share possession and further declaration that sale deed dated 20.3.2014 (Ex.P1) executed by respondent No.1 (herein)/ defendant No.1 namely; Thanu Kalar, in favour of respondent No.2 (herein) / defendant No.2 namely Smt. Rewati Bai is not binding upon him. Plaintiff had also sought permanent injunction after granting him 1/ 6^th share of suit land.

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(For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court)

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Facts of the case, in a nutshell, are that plaintiff filed civil suit No.25A/2015 stating inter alia that both the parties are family members and defendant No.1 Thanu Kalar, had obtained suit land bearing Khasra No. 341 admeasuring 0.41 hectare situated at village Atarmara,

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Patwari Halka No.21, R.N.M. Churra, Tahsil Churra District Gariyaband (C.G.) (henceforth referred as suit land) in family partition, as such, suit land is an ancestral property of plaintiff. Defendant No.2 namely; Smt. Rewati Bai is wife of predeceased son namely; Bharat of defendant No.1 Thanu Kalar. Plaintiff being a son of defendant No.1 is entitled for 1/6^th share over the suit land. However, partition was sought for by the plaintiff, but, the same was not effected by the defendant No.1, rather he sold the suit land to defendant No.2 vide registered sale deed dated 20.3.2014 for sale consideration of Rs.1,74,000/-, whereas, he has no right to sell the suit land. Since no partition was granted to the plaintiff, he filed civil suit bearing No. 25A/2015 before trial Court, seeking relief as mentioned in the opening paragraph of this judgment.

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Defendant No.1 and 2 have filed their joint written statement, in which they denied that suit land is an ancestral property of defendant No.1 or plaintiff, rather as per them, the suit land was purchased by defendant No.1 from Bhawani Shankar Agrawal vide registered sale deed dated 08.10.1957, as such, it is his self-acquired property. It is averred that the suit land is recorded in the name of defendant No.1. It is also averred that land obtained by defendant No.1 in family partition, has already been partitioned by him between his two sons namely; Bharat (husband of defendant No.2) and Kailash (Plaintiff). As such, being self-acquired property of defendant No.1, plaintiff is not entitled to get any share over the suit land, hence, suit is liable to be rejected.

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Based on pleadings of both the parties, the trial Court framed as many as six issues. After recording evidence adduced by learned counsel for the parties, trial Court, dismissed the civil suit holding therein that suit land is not an ancestral property of plaintiff, rather it is a self-acquired

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property of defendant No.1, hence, he has right to alienate the same. Therefore, plaintiff is not entitled to get 1/6^th share of the suit land. Being aggrieved, plaintiff has preferred the instant appeal.

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Learned counsel for the plaintiff submits that vide registered sale deed dated 08.10.1957 (Ex. D3) suit land was purchased by father of Thanu Kalar in his name, at that time defendant No.1 Thanu Kalar was minor. He further submits that while purchasing the suit land, Khasra number of the same was 312 which has been subsequently, renumbered as Khasra No. 341 which is suit land in instant case. He next submits that since at the time of purchase of suit land, Thanu Kalar, defendant No.1, was minor and it was purchased by his father Late. Dashrath Kalar, the learned trial Court ought to have held that suit land is an ancestral property of defendant No.1 Thanu Kalar. The same has also been proved by plaintiff’s witnesses in their deposition, but, the learned trial Court did not consider those evidences in its true perspective, which is against the law, hence, he prays that impugned judgment and decree passed by the trial Court be set-aside and decree may be granted in favour of plaintiff by allowing this appeal.

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Per Contra , learned counsel for respondent No. 1 and 2 submits that impugned judgment passed by the trial Court is well merited, based on appreciation of evidence available on record, hence, it does not call for any interference of this Court.

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Learned State counsel submits that State is a formal party.

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I have heard learned counsel for the parties and perused the records with utmost circumspection.

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As per the case of plaintiff, earlier Khasra Number of suit land was 312, which was purchased by Late. Dashrath Kalar, in the name of

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defendant No.1 Thanu Kalar, but, plaintiff has pleaded that present khasra number of suit land is 341 meaning thereby, as per plaintiff, kharsa No. 312 has been renumbered as khasra No.341, which is said to be the suit land, but, no document has been filed by the plaintiff to prove the fact that Khasra No.312 which was purchased vide Ex.D3 was renumbered as Khasra No.341. Even otherwise, vide Ex.D3, Thanu Kalar had purchased kharsa No.312, but, neither his age has been mentioned in the sale deed, nor he has been named as a purchaser through his father, therefore, only because of baseless oral statement, it cannot be held that at the time of execution of registered sale deed (Ex.D3), Thanu Kalar was minor.

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10.Perusal of revenue record i.e., Kisht Bandi Khatouni of year 2001-02 and Khasra Panchshala of year 2001-02 which is part of sale deed Ex.P1 shows that suit land bearing khasra No.341 rakba 0.410 hectare is recorded in the name of Thanu Kalar. Plaintiff had not filed any document to prove the fact that defendant No.1/Thanu Kalar has obtained the title over the suit land from his father, therefore, there is no evidence on record to prove the fact that suit land was an ancestral property of defendant No.1 / Thanu Kalar.

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11.Having considered aforesaid evidence, only on the basis of oral statement of plaintiff Kailash Kalar (PW1) and Kumar Ram (PW2) and Ramlal Sinha (PW3), suit land cannot be held to be an ancestral property of plaintiff, rather evidence on record very well demonstrate that suit land is a self-acquired property of Thanu Kalar, therefore, he is entitled to alienate the suit land which he has sold to defendant No.2, vide registered sale deed dated 20.3.2014 (Ex.P1).

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12.In view of above discussion, I do not find any perversity or illegality in the impugned judgment and decree passed by the trial Court dismissing civil suit filed by plaintiff, hence, appeal is devoid of merit and the same is hereby dismissed.

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