Nestor Vs Dular

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Digitally signed by AJINKYA PANSARE Date: 2025.11.24 14:17:48 +0530

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2025:CGHC:56752

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 299 of 2002

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1 - Nestor S/o Simon Aged About 40 Years Caste Uraon Occupation Cultivation, R/o Village Chatpur, Tahsil Kunkuri, District Jashpur Nagar, Chhattisgarh.

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2 - Malias S/o Simon Aged About 26 Years Caste Uraon Occupation Cultivation, R/o Village Chatpur, Tahsil Kunkuri, District Jashpur Nagar, Chhattisgarh.

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3 - Vinsent (Died), Through Lrs. As Per Hon'ble Court Order Dated 1309-2022,

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3.1 - (A) Smt. Augustina Xalxo Wd/o Vicent Xalxo Aged About 42 Years R/o Village Chatakpur, P.O. Dandahih, P.S. Duldula, District Jashpur Chhattisgarh

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3.2 - (B) Rosline Xalxo D/o Vicent Xalxo Aged About 18 Years R/o Village Chatakpur, P.O. Dandahih, P.S. Duldula, District Jashpur Chhattisgarh

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3.3 - (C) Rohit Kumar Xalxo S/o Vicent Xalxo Aged About 13 Years Through Guardian Mother Smt. Augustina Xalxo, R/o Village Chatakpur, P.O. Dandahih, P.S. Duldula, District Jashpur Chhattisgarh

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4 - Norwart S/o Simon Aged About 22 Years Caste Uraon Occupation Cultivation, R/o Village Chatpur, Tahsil Kunkuri, District Jashpur Nagar, Chhattisgarh.

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5 - Mst. Siliya Wd/o Simon Aged About 35 Years Caste Uraon Occupation Cultivation, R/o Village Chatpur, Tahsil Kunkuri, District Jashpur Nagar, Chhattisgarh.

... Appellants

versus

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1 - Dular S/o Late Lothe Aged About 55 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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2 - Liban S/o Late Lothe Aged About 45 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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3 - Silbanu S/o Lothe Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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4 - Junias (Died) Through Lrs As Per Honble Court Order Dated 18/10/2022

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4.1 - Smt. Rejina W/o Junias Aged About 50 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District : Jashpur, Chhattisgarh

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4.2 - Ku. Preeti D/o Junias Aged About 25 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District : Jashpur, Chhattisgarh

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4.3 - Ku. Sarita D/o Junias Aged About 23 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District : Jashpur, Chhattisgarh

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4.4 - Vinod S/o Junias Aged About 21 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District : Jashpur, Chhattisgarh

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4.5 - Manoj S/o Junias Aged About 50 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District : Jashpur, Chhattisgarh

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5 - Thomas S/o Lukas Aged About 40 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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6 - Ruben S/o Lukas Aged About 35 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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7 - Anjulus S/o Lukas Aged About 30 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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8 - Sushama S/o Lukas Aged About 32 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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9 - Mst. Magdali Wd/o Lukas (Deleted) Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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10 - Benedik (Died) Through Legal Heirs As Per The Hon'ble Court Order Dated 14-02-2022.

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10.1 - A. Smt. Silena W/o Late Benedik Aged About 55 Years R/o Village Chatakpur , Occupation Cultivation, Police Station Dhandih, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh. 10.2 - B. Satish Xalxo S/o Late Benedik Aged About 27 Years R/o Village Chatakpur , Occupation Cultivation, Police Station Dhandih, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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11 - Khritoffer S/o Marshel Aged About 27 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh. 12 - Pinyus S/o Marshel Aged About 25 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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13 - Agartus S/o Marshel Aged About 32 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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14 - Sersa S/o Marshel Aged About 20 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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15 - Mst. Silia Wd/o Marshel Aged About 60 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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16 - Baril (Died), Through Lrs. As Per Hon'ble Court Order Dated 13-092022,

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16.1 - (A) Pulikar Xalxo S/o Basil Xalxo Aged About 35 Years R/o Tetaratoli P.S. Kunkuri, District Jashpur Chhattisgarh 16.2 - (B) Silvestar Xalxo (Died Through Lrs) As Per Honble Court Order Dated 12-08-2025

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16.2.1 - Amit Xalxo S/o Late Sylvestor Xalxo Aged About 42 Years Residing At Village Tetartoli, Post Dandadeeh, Tahsil Duldula, District Jashpur Nagar (C.G.)

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16.2.2 - Ayran Xalxo S/o Late Sylvestor Xalxo Aged About 37 Years Residing At Village Tetartoli, Post Dandadeeh, Tahsil Duldula, District

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Jashpur Nagar (C.G.) 16.3 - (C) Anlomis Xalxo (Died Through Lrs) As Per Honble Court Order Dated 12-08-2025

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16.3.1 - Smt. Benelia Xalxo W/o Late Antonis Xalxo Aged About 62 Years Residing At Village Tetartoli, Post Dandadeeh, Tahsil Duldula, District Jashpur Nagar (C.G.)

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16.3.2 - Priyanka Xalxo D/o Late Antonis Xalxo Aged About 43 Years Residing At Village Tetartoli, Post Dandadeeh, Tahsil Duldula, District Jashpur Nagar (C.G.)

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16.3.3 - Pinki Kumari D/o Late Antonis Xalxo Aged About 39 Years Residing At Village Tetartoli, Post Dandadeeh, Tahsil Duldula, District Jashpur Nagar (C.G.) 16.3.4 - Avinash Xalxo S/o Late Antonis Xalxo Aged About 37 Years Residing At Village Tetartoli, Post Dandadeeh, Tahsil Duldula, District Jashpur Nagar (C.G.)

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17 - Johan S/o Siri Aged About 50 Years Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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18 - Minor Sanjita D/o Late Josef Aged About 12 Years Through Guardian Dular, S/o Lothe, Resident Of Village Chatakpur , Occupation Cultivation, Tahsil Kunkuri, District Jashpur Nagar Chhattisgarh.

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19 - Rimish S/o Siri Aged About 50 Years R/o Village Panagarh, District Jabalpur Madhya Pradesh.

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20 - State Of Chhattisgarh Through Collector Jashpur Chhattisgarh.

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... Respondents

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For Appellants	:	Mr. N.K. Malviya, Advocate
For Respondents	:	None, though served
No. 1 to 19
For State	:	Mr. Pramod Shrivastava, Dy. G.A.

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Hon’ble Shri Justice Rakesh Mohan Pandey

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Judgment On Board

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21-11-2025

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1) Plaintiffs have preferred this second appeal under Section 100 of CPC against the judgment and decree passed by the learned

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Additional District Judge, Jashpur Nagar in Civil Appeal No. 7-A/2002 dated 9.5.2002, whereby the appeal preferred by the plaintiffs was dismissed and judgment and decree passed by the learned First Civil Judge, Class-I, Jashpur Nagar in Civil Suit No. 66-A/1992 dated 25.8.1999 was affirmed.

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2) This second appeal was admitted for hearing vide order dated 1.11.2022 on following substantial questions of law :-

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1 . Whether the two courts below were justified in holding that the suit of the plaintiff was barred by limitation?

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2 . Whether the two courts below were justified in holding that the provisions of the Hindu Succession Act would had become applicable in the case of the plaintiffs and the defendants particularly when they were all belonging to the Christian community?

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3) Parties to the suit belong to one and same family. The plaintiffs filed suit for declaration of title and permanent injunction pertaining to Khasra No. 113/3 ad-measuring 3 acres situated at Village Chatakpur, Tehsil – Kunkuri, District – Jashpur Nagar interalia on the ground that Late Simon, who was the father of plaintiffs got immovable property in partition from his father Lt. Dhidhara. Late Simon moved an application for settlement of land bearing survey No. 113/3 ad-measuring 3 acre and it was settled in his name and said property became his self acquired property. It was further pleaded that in the year 1954-55 survey No. 113/3 was included in the account of joint family property in the revenue record but it remained in possession of Lt. Simon during his

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lifetime, who died in the year 1965 and thereafter plaintiffs inherited the suit property. It is further pleaded that inclusion of survey no. 113/3 as joint family property in the revenue record was not within the knowledge of Lt. Simon and after his death, plaintiffs came to know about this fact and moved application before the concerned Tehsildar for correction of record and partition between the legal heirs of Lt. Simon. The said application was allowed vide order dated 6.11.1987 and against that order, appeal was preferred by the defendants before the Sub-Divisional Officer (Revenue), Jashpur, who vide order dated 2.5.1988 set aside the order passed by the Tehsildar and remitted the matter to Tehsildar to decide it afresh strictly in accordance with the provisions of Section 178 of Chhattisgarh Land Revenue Code, 1959. Plaintiffs also pleaded that cause of action arose on 2.5.1988 and they alleged that Sub-Divisional Officer (Revenue), Jashpur passed the order dated 2.5.1988 in breach of statutory rules.

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4) Defendants filed written statement and denied the plaint averments. They pleaded that Khasra No. 113/3 was included as joint family property in the year 1954-55 with the consent of Lt. Simon and this fact was within the knowledge of Simon and thereafter the plaintiffs. It is further pleaded that Lt. Simon did not take any steps to challenge such entries made in the revenue record during his lifetime and suit was filed by the plaintiffs in the year 1988 i.e. after 32-33 years from the date of inclusion of the

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suit property as joint property in the revenue record, thus the suit was barred by limitation.

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5) Learned trial Court framed issues ; parties led evidence and thereafter, suit was dismissed by the learned trial Court vide judgment and decree dated 25.8.1999 holding it barred by limitation. Plaintiffs preferred regular appeal before the learned first appellate Court and it was also dismissed vide judgment and decree dated 9.5.2002.

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6) Learned counsel appearing for the appellants/ plaintiffs submits that when the plaintiffs came to know about the entries made in the revenue record of year 1954-55, they moved application for correction of record and partition before the concerned Tehsildar and said application was allowed vide order dated 6.11.1987 after affording due opportunity of hearing to the defendants. He further submits that an appeal was preferred by the defendants before Sub-Divisional Officer (Revenue), Jashpur, who vide order dated 2.5.1988 set aside the order passed by Tehsildar and directed the defendants to approach the competent civil court to get decided the issue of title. He contends that though plaintiffs specifically pleaded in the plaint that parties belong to christian community, learned Courts below applied provisions of Hindu Law, therefore the findings recorded by the Courts below are liable to be set aside. He further contends that Khasra No. 113/3 was settled in the name of Lt. Simon and this fact is evident from the documents

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placed on record by the plaintiffs and cause of action arose on 2.5.1988 when order was passed by the Sub-Divisional Officer (Revenue), Jashpur against the plaintiffs, thus suit is within limitation but the learned Courts below committed error of law while deciding the issue of limitation against the plaintiffs. He prays to set aside the respective judgments and decrees passed by the learned Courts below.

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7) On the other hand, learned State counsel supports the judgments and decrees passed by the learned Courts below.

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8) Heard learned counsel for the parties and perused the record with utmost circumspection.

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9) Firstly, I will deal with the substantial question of law regarding limitation. As pleaded by the plaintiffs, land bearing Khasra No. 113/3 ad-measuring 3 acres situated at Village Chatakpur was settled in the name of Lt. Simon in the year 1950-51 and in this regard, plaintiffs have placed document Exhibit P/2 on record but this document has not been signed by any revenue authorities. Exhibit P/3 is the record of revenue proceeding of the Court of Tehsildar pertaining to year 1941. The document shows that an application was moved by Lt. Simon to settle land bearing Khasra No. 113/3 in his favor and his prayer was refused vide document Exhibit P/4. Exhibit P/5 is the form of application for reclamation of land. Exhibited P/6 is the application moved by Lt. Simon on 17.8.1940. The document Exhibit P/8 is the revenue record of the

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year 1954-55 which shows that lands bearing Khasra No. 113/3 ad-measuring 3 acres ; Khasra No. 217 ad-measuring 1.23 acres ; Khasra No. 285 ad-measuring 5.76 acres ; Khasra No. 289 ad-measuring 1.17 acres and Khasra No. 293 ad-measuring 4.47 acres were recorded in the names of Late Simon as well as defendants.

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10) Exhibit D/1 is the revenue record of the year 1948-49, which shows that total 12.63 acres of land was recorded in the names of Lothe, Sirir, Simon and Sile.. Exhibit D/2 is the revenue record of the year 1975-76, which shows that 14.63 acres of land including Khasra No. 113/3 was recorded in the names of plaintiffs as well as defendants. Exhibit D/4 is the order passed by the SubDivisional Officer (Revenue), Jashpur dated 2.5.1988, whereby case was remitted back to the the concerned Tehsildar to decide it afresh strictly in accordance with the provisions of Section 178 (1A) of the Code, 1959. A perusal of this document would show that the Tehsildar had granted opportunity to the respective parties to approach the competent civil court but none of the parties approached, therefore contention made by Mr. Malviya to the effect that Sub-Divisional Officer (Revenue), Jashpur directed the defendants to approach civil court appears to be misplaced.

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11) Nestor Khalko, who has been examined as PW/1 supported the case of plaintiffs. Kapileshwar Mishra was examined as PW/2 and in para-4, he admitted the inclusion of three acres of land in

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account of joint family property and information in this regard was duly communicated to Nestor Khalko in the year 1970. Thus, the contention made by Mr. Malviya to the effect that entries made in the revenue record of year 1954-55 were not within the knowledge of the plaintiffs appears to be incorrect. It is pertinent to mention that Lt. Simon died in the year 1965 and the land bearing Khasra No. 113/3 was included as joint family property in the revenue record in the year 1954-55 whereas the civil suit was filed on 12.7.1988.

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12) Plaintiffs have pleaded that cause of action arose on 2.5.1988 when the Sub-Divisional Officer (Revenue), Jashpur passed the order but they failed to place on record that order. According to Article 58 of the Limitation Act, 1963, period of limitation to obtain any other declaration is three years from the date when the right to sue first accrues.

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13) In view of the aforesaid discussion, it is quite clear that Khasra No. 113/3 ad-measuring 3 acres was recorded as joint family property in the revenue record of year 1954-55 and information in this regard was communicated to Nestor in the year 1970 therefore cause of action, if any had arisen in the year 1970, thus learned Courts below rightly held that the suit filed by plaintiffs was barred by limitation. Accordingly, the substantial question of law regarding limitation is answered in negative against the plaintiffs.

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14) With regard to second substantial question of law which relates to application of the provisions of Hindu Law by the learned Courts below. The judgments passed by the learned Courts below would reveal that there is no whisper with regard to application of Christian Law or Hindu Law in the judgments passed by the two Courts below and the suit has been decided on the basis of facts, oral and documentary evidence led by the parties, therefore contention made by Mr. Malviya regarding application of provisions of Hindu Law is also misconceived. Accordingly, this substantial question of law is also answered in negative against the plaintiffs.

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15) In result, this second appeal stands dismissed . A decree be drawn accordingly.

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Sd/(Rakesh Mohan Pandey) JUDGE

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A j i n k y a

Nestor v. Dular

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Nestor v. Dular

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