(Deleted), Smt. Jawahir Dubey Vs Smt.Ramkali Dubey (Deleted) Kumud Dubey and Ors.

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2025:CGHC:55577

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NAFR

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Reserved on 29.07.2025 Delivered on 14.11.2025

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 481 of 2012

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1 - (Deleted), Smt. Jawahir Dubey As Per Honble Court Order Dated 1910-2023

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2 - Smt. Tarini Diwan D/o Late Shyam Lal Dubey Aged About 52 Years Presently R/o Kelabadi, Durg, Tah. And Distt. Durg C.G., District : Durg, Chhattisgarh

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3 - Rajkumar Diwan S/o Pawan Diwan Aged About 27 Years Chikhli, Rajnandgaon, Tah. And Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

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4 - Smt. Subhashini Sharma D/o Late Shyam Lal Dubey Aged About 54 Years Padmanabhpur, Durg, Tah. And Distt. Durg C.G., District : Durg, Chhattisgarh

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... Appellants(s)

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versus

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1 - Smt.Ramkali Dubey (Deleted) Kumud Dubey And Ors. Wd/o Late Uttam Lal Dubey Aged About 76 Years Bilaspur, Chhattisgarh

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2 - (Died), Kamlesh Kumar Dubey As Per Honble Court Order Dated 1910-2023.

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2.1 - Kumud Dubey W/o Late Kamlesh Kumar Dubey Aged About 60 Years R/o Ganpati Vihar Colony, Changora Bhata, Near Durga Mandir, Raipur, District Raipur (C.G.)

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3 - Krishna Kumar Dubey S/o Late Uttam Lal Dubey Aged About 37 Years House No. 28, State Bank Colony, Sundar Nagar, Raipur, Tah. And Distt. Raipur C.G., District : Raipur, Chhattisgarh 4 - Nirmal Kumar Dubey S/o Late Uttam Lal Dubey Aged About 35 Years House No. 28, State Bank Colony, Sundar Nagar, Raipur, Tah. And Distt. Raipur C.G., District : Raipur, Chhattisgarh

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5 - Pawan Diwan S/o Aged About 54 Years Sarswati Nagar, Behind Purani

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2

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Basti Thana, Raipur, Tah. And Distt. Raipur C.G., District : Raipur, Chhattisgarh

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6 - Smt. Rajul Jain W/o Shri Nathmal Jain, Aged About 54 Years (Katdiya), Caste Julha, Momin (Musalman), R/o. Kamthi Line, Ward No.26, Tahsil And District - Rajnandgaon, Chhattisgarh. Pan No. Alrpk 3229r, Aadhar No.371195380763

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7 - Abdul Kadir Khan S/o Late Abdul Jabbar Khan, Aged About 49 Years Caste - Julha Momin (Musalman), Pan No. Aqopk 9806c, Aadhar No. 90316280726. R/o. Gouri Nagar, Gali No.02, Ward No.12/14, Tahsil And District - Rajnandgaon, Chhattisgarh.

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8 - Sohel Khan S/o Late Abdul Jabbar Khan, Aged About 25 Years Caste - Julha Momin (Musalman), Pan No. Dvypk 5261 Aadhar No. 374294159605 R/o. Gouri Nagar, Gali No.02, Ward No.12/14, Tahsil And District - Rajnandgaon, Chhattisgarh.

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9 - Faijal Khan S/o Late Abdul Jabbar Khan, Aged About 21 Years Caste - Julha Momin (Musalman) Pan No. Eqcpk 8997j, Aadhar No. 355742441270 R/o. Gouri Nagar, Gali No.02, Ward No.12/14, Tahsil And District - Rajnandgaon, Chhattisgarh.

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---- Respondent(s)

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For Appellant	:	Mr. H.B. Agrawal, Sr. Advocate with Ms. Swati
		Agrawal, Advocate
For R/1 to 4	:	Mr. B.P. Sharma and Mr. Karunendra Narayan Singh, Advocates
For R/6 to 9	:	Mr. Anand Shukla and Mr. Parth Shrivatava, Advocates

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Hon'ble Shri Justice Narendra Kumar Vyas

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CAV Judgment

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1. This is defendants’ Second Appeal filed under Section 100 of the C.P.C. challenging the judgment and decree dated 28.09.2012 passed by the learned Second Additional District Judge, Rajnandganon in Civil Appeal No. 39A/2012 by which learned Second Additional District Judge has dismissed the appeal filed by defendants and affirmed the judgment and decree dated 21.03.2012 passed by the First Civil Judge, Class –II,

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Rajnandgaon in Civil Suit No. 14-A/2011.

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2. The appeal was admitted on 21.11.2017 on the following substantial question of law :-

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A. Whether the Courts below were justified in holding that the suit property admeasuring 68 Sq. meter forming the part of 186 sq. meter of plot No. 11 situated at Village Chikli, District – Rajnandgaon was the joint property of Shyamlal Dubey and Uttam Lal Dubey and had fallen in plaintiffs share in an oral partition effected in 1975, acknowledged on 17.05.1982 (Ex.P-1)?

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3. For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit before the trial Court.

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4. The plaint averments, in brief, are that plaintiffs filed a suit for declaration of title and permanent injunction mainly contending that :-

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A. The plaintiffs and the defendants belong to same family. Late Shyamlal Dubey and late Uttamlal Dubey were brothers. Late Uttamlal Dubey was the husband of plaintiff No. 1 and father of plaintiffs No. 2 to 4 and Late Shyamlal Dubey was husband of defendant No. 1, father of defendant No. 2 and 5, and father-in-law of defendant No. 3. Late Shyamlal Dubey and late Uttamlal Dubey jointly owned a double storey house situated at Plot No. 11 area 186 Sq.M., Station Para, Rajnandgaon (hereinafter referred to as ‘the Suit Property’). In 1975 an oral partition was taken place. As per the said partition, front side of the house 26’X22’ ground floor, four rooms in first floor, kitchen 13’8”X8’8” and rest of the part of the

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house was given to Shyamlal Dubey and open courtyard measuring 8’6”X12’6” adjacent to both the house was given to the plaintiffs, as such, the plaintiffs received property situated in 68 Sq.M and Shyamlal Dubey received 118 Sq.M. An acknowledgment of the said oral partition was made between them on 17.05.1982.

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B. It is also the case of the plaintiffs that Shaymlal Dubey expired in 1990 and after his death, his share of the property was given on rent by the defendants and they were residing at another place at Durg. Plaintiff No. 1 is in possession of the property in their share and plaintiffs No. 2 to 4 reside at Raipur and used to visit the house. The share of house given to plaintiffs and defendants are described in Schedule A of the plaint.

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C. It has been further contended that after death of Shyamlal, Uttamlal Dubey was the eldest member of the family. During the lifetime of Uttamlal Dubey, there was no dispute in the family. After death of Uttamlal Dubey, the plaintiffs came to know that the names of the defendants were recorded in the entire property, therefore, they moved an application before the Assistant Officer (Land Record), Rajnandgaon. The Assistant Officer (Land Record) rejected the application on 05.03.2005 on the count that vide order dated 29.04.2000, the property has been recorded in the name of defendants. Aggrieved with the said order, the plaintiffs filed an appeal before the Sub-divisional Officer (R), Rajnandgaon who also has

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rejected the appeal on 30.09.2005.

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D. It is also the case of the plaintiffs that on the basis of the order dated 30.09.2005, the defendants in January, 2008 threatened the plaintiffs to interfere in possession of the plaintiffs, which necessitated them to file present suit for declaration and permanent injunction.

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E. Defendants No. 1,2,4 and 5 filed written statement denying the allegation levelled in the plaint mainly contending that the claim made by the plaintiffs is false. There was no oral partition between the plaintiffs and Shyamlal Dubey in the year 1975, as such no part of the property was received by the plaintiffs. It has been further contended that the acknowledgment of the Oral agreement was prepared later and it is unregistered document therefore, it is not reliable. Late Shyamlal and Late Uttamlal never owned the property jointly. The property was not ancestral property. The property was recorded in the name of defendants only. The appeal filed by the plaintiffs before the SDO(R) has rightly been rejected. It is also the case of the defendants that the property was purchased by Late Shyamlal Dubey and after his death, names of defendants were duly recorded in the revenue records. Hence, they prayed for dismissal of the suit. Defendant No. 3 did not file any written statement being ex-parte.

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5. On the pleadings of the parties, learned trial Court has framed as many as 3 issues. The plaintiffs to substantiate their case

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examined Ramkali as PW/1, Sukaluram as PW/2 and Rajendra Kumar Soni as PW/3 and exhibited documents namely Acknowledgment letter as Ex.P/1, Municipal Corporation tax payment receipts as Ex.P/2 to Ex.P/12, Report of Revenue Inspector as Ex.P/13. The Defendants examined Rajkumar Diwan as DW/1, Tarini Diwan as DW/2 and exhibited documents namely Municipal Corporation Tax receipts as Ex.D/1 to Ex.D/23. 6. Learned trial court considering the evidence, material on record has allowed the suit and recorded its finding that the plaintiffs are the owner of the front part of the suit property 68 Sq.ft. described in Schedule A of the plaint and the defendants are the owner of back side of the suit property and restrained the defendants from interfering in peaceful possession of the plaintiffs vide its judgment and decree dated 21.03.2012.

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7. Being aggrieved with the judgment and decree, the defendants assailed it before the First Appellate Court under Section 96 of the CPC contending that the learned trial Court has miserably failed to appreciate the evidence, material on record. It has been contended by the defendants that learned trial Court has failed to appreciate that the oral partition has not been proved. Learned trial Court has erred in relying upon the Acknowledgment deed. Learned trial Court has also failed to appreciate the fact that the names of defendants have already been recorded in the revenue records and the appeal filed by the plaintiffs before the Assistant Land Officer and Sub-divisional Officer (R) have been rejected. The judgment and decree has been passed only by appreciating the examination-in-chief of the plaintiffs, therefore, the judgment

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and decree passed by the learned trial Court is erroneous, accordingly prayed for setting aside the judgment and decree passed by the learned trial Court. Learned first appellate Court after re-appreciating the evidence and materials on record, dismissed the appeal and affirmed the judgment and decree passed by the learned trial Court. This judgment is being challenged by the defendants by filing second appeal before this Court. The second appeal has been admitted on aforestated substantial question of law.

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8. Learned Sr. Advocate for the appellants would submit that learned first appellate Court as well as learned trial Court have failed to appreciate Sections 101 and 102 of the Indian Evidence Act as the burden of proof lies upon the respondents to prove that the suit property was joint property which they have miserably failed. He would further submit that the mutation was done in the year 2000, at that time the respondents have not objected, later in the year 2008 the suit has been filed, therefore, suit is barred by limitation. Learned courts below have also erred in considering that the suit property as ancestral property, therefore, he would pray for setting aside the judgment and decree passed by the learned first appellate Court.

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9. On the other hand, learned counsel for the respondents would submit the learned first appellate Court as well as learned trial Court have passed very reasoned order, there is no illegality or perversity which warrants interference by this Court. They would further submit that both the courts below have rightly relied upon the oral partition which has been duly acknowledged on

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17.05.1982 and under the Hindu Law oral partition is also permissible and witness examined by the plaintiffs PW/1 before the trial Court has categorically deposed that an oral partition has already been taken place which has been duly acknowledged. This evidence of PW/1 was not rebutted by extensive crossexamination by her. She has also denied that the acknowledgment is forged and fabricated. They would further submit that defendants have not produced any evidence to prove that the partition has not been taken place and the acknowledgment of the partition is forged and fabricated as burden lies upon them only. The witness has further stated that the property has been purchased by joint income of both the brothers but she has admitted that she has not produced any documents to substantiate. Thus, it has been contended that the finding recorded by the trial Court and affirmed by the first appellate Court does not suffer from perversity or illegality warranting interference by this Court. As such, substantial question of law framed by this Court deserves to be answered against the defendants/appellants and in favour of the plaintiffs/respondents. To substantiate their submission they would refer to the judgment of the Hon’ble Supreme Court in case of Ravindra Kaur Grewal and Others vs. Manjit Kaur and Others {2019 (8) SCC 729}.

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10. I have heard learned counsel for the parties, perused the documents with utmost satisfaction.

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Discussion and finding on the Substantial Question of law

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11. For determining the substantial question of law, it is expedient for

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this Court to refer evidence adduced by the defendants. DW/1 Rajkumar Diwan who is maternal grandson of Shyamlal Dubey in his examination in chief has stated that his grandfather has purchased the suit property from his income. This witness has stated that his maternal grand-father was working in the BNC Mills Rajnandgaon but he is not aware when he retired from the service. He has denied that the house was purchased 60-62 years before. He has also admitted that he has not seen the sale deed of the house. The other witness Smt. Tarini Diwan in her examination in chief has supported the case of the defendants and in her cross-examination she has stated that when the suit property was purchased is not known to her but it has been purchased before her birth (it is pertinent to mention here that at the time of recording of evidence, her age is mentioned as 53 years). She has denied the signature of her father in the acknowledgment Ex.P/1. She has also stated that in written statement she has not pleaded about denial of signature of her father.

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12. From the appreciation of the evidence it is quite vivid that the defendants have not placed any evidence or material on record to prove that the suit property was purchased by husband of defendant No.1 only. The defendants have not filed any sale deed but have only filed receipts of Municipal Corporation Tax which are revenue records and do not confer any title to the defendants over the suit property in view of the law laid down by the Hon’ble Supreme Court in case of P. Kishore Kumar vs. Vittal K. Patkar {2023 INSC 1009} wherein Hon’ble Supreme Court has held as

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under :-

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It is trite law that revenue records are not documents of title.

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This Court in Sawarni vs. Inder Kaur and Ors. held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. All it does is entitle the person in whose favour mutation is done to pay the land revenue in question. (1996) 6 SCC 223

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This was further affirmed in Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors. wherein this Court held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land.

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In Jitendra Singh vs. State of Madhya Pradesh and Ors., this Court after considering a catena of judgments, reiterated the principle of law as follows:

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“6. ***mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.”

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We may also profitably refer to the decision of this Court in Sita Ram Bhau Patil vs. Ramchandra Nago Patil (Dead) by LRs. and Ors. wherein it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary.

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In the present case, the Commissioner’s order distinctly denying the rights of occupancy to the plaintiff’s vendor is evidence that renders these revenue entries unworthy of acceptance.

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13. The defendants have not even made effort to question the signature of defendant No.1’s husband in the acknowledgment by sending the relevant documents to the experts for obtaining opinion as per Section 45 of the Indian Evidence Act to substantiate that the acknowledgment was forged and fabricated. In absence of no such material, both the Courts’ below have rightly recorded their finding that the partition has taken place.

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14. Both the courts below after appreciating the evidence and material on record have rightly recorded their finding that the suit property belongs to joint Hindu family and an oral partition has

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been taken place which was duly acknowledged vide Ex.P/1 dated 17.05.1982 and the defendants/appellants are unable to discharge their burden to prove that the suit property has been purchased by husband of defendant No.1 only as the plaintiffs through their evidence have proved that the property was jointly owned by both the brothers, as such onus would be shifted on the person who claims it to be self acquired property to prove that he purchased the property with his own fund and not from the joint family nucleus that was available. The findings recorded by the both the courts below are in accordance with the law laid down by the Hon’ble Supreme Court in case of Bhagwatsharan through Lrs vs Purushottam and Others {2020) 6 SCC 387} wherein Hon’ble Supreme Court has held as under :-

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At the outset we may note that a lot of arguments were addressed and judgments were cited on the attributes of HUF and the manner in which it can be constituted. In view of the facts narrated above, in our view, a large number of these arguments and citations need not be considered. The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal vs. Reoti Devi. Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah and Ors. vs. Dulhin Rameshwari Kuer and Ors., it held as follows:-

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“…. Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.”

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The Privy Council in Appalaswami v. Suryanarayanamurti held as follows:

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"The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family property” The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors.4 In D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. this Court held as follows:

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“The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be selfacquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”

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Similar view was taken in Mst Rukhmabai v. Lala Laxminarayan and Others. and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

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15. The appellants have also filed an application under Order 41 Rule 27 of the CPC for taking additional documents i.e. the lease granted in favour of Shyamlal by the Collector, Rajnandgaon for the year 1977-78 to contend that the said document is relevant for adjudication of the suit, as such, it has been prayed for allowing the said application. This application was objected by respondent No. 6 that no such pleading was made in the suit regarding the lease and no justifiable reason has been assigned for not filing

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the same before the trial Court despite due diligence and would pray for dismissal of the application.

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16. Considering the submission that the defendants by the said document intend to make out new case as in the trial Court he has categorically contended that the defendant’s husband Shyamlal Dubey has purchased the suit property from its own fund, as such it is nothing but an attempt to make out a new case, therefore, the lease is not relevant for proper adjudication of the suit accordingly, the application under Order 41 Rule 27 of the CPC is liable to be rejected and it is rejected.

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17. Both the courts below after appreciating the evidence, material on record and also considering the fact that the plaintiffs have proved the fact that an oral partition was taken place which was reduced in writing by acknowledging the same. Both the courts below have also recorded finding that the defendants are unable to discharge their burden to prove that the suit property was not purchased from the nucleus of joint family but from own fund. As such, finding recorded by both the courts below neither suffer from perversity nor illegality warranting interference by this Court, therefore, the substantial question of law framed by this Court deserves to be answered against defendants/appellants and in favour of the plaintiffs/respondents.

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18. Consequently, the second appeal is liable to be dismissed and it is dismissed. The judgment and decree passed by the learned Trial Court and the learned Appellate Court in First Appeal are affirmed. The interim order passed by this Court on 21.11.2017 is vacated.

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19. No order as to costs.

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20. A decree be drawn up accordingly.

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Sd/-

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Deshmukh KISHOREKUMARDESHMUKH Digitally signedby KISHOREKUMARDESHMUKHDate:2025.11.1418:58:56 +0530

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(Narendra Kumar Vyas) Judge

(Deleted), Smt. Jawahir Dubey v. Smt.Ramkali Dubey (Deleted) Kumud Dubey and Ors.

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(Deleted), Smt. Jawahir Dubey v. Smt.Ramkali Dubey (Deleted) Kumud Dubey and Ors.

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