Dr. Shipra Sharma Vs Deleted (Smt. Genda Bai Pathak) (Died)

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2025:CGHC:50564

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Reserved on 10.07.2025 Pronounced on 10.10.2025

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SA No. 654 of 2015

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1 - Dr. Shipra Sharma W/o Tarun Sharma, Aged About 56 Years R/o Mekahara Compound, No.31, Dr. Resident Raipur, Tah. And Dist. Raipur, Chhattisgarh, Chhattisgarh 2 - Smt. Seema Tiwari W/o Shri Devdutt Tiwari, Aged About 49 Years R/o Block Road, Takhatpur, Tah. Takhatpur, Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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3 - Smt. Shardha Shukla W/o Mahesh Shukla, Aged About 43 Years R/o Kota, Raipur, Tah. And Dist. Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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4 - Smt. Sampa Saraf W/o Laxminarayan Saraf, Aged About 41 Years R/o Shree Vihar Jabdapara, Bilaspur, Tah. And Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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5 - Sheel Kumar Pathak S/o Shree Kumar Pathak, Aged About 39 Years R/o Ramnagar, Tikripara, Takhatpur, Tah. Takhatpur, Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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6 - Sneh Kumar Pathak S/o Shree Kumar Pathak, Aged About 36 Years R/o Near State Bank Sarkanda, Bilaspur, Tah. And Dist. Bilaspur, Chhattisgarh .........Defendants, District : Bilaspur, Chhattisgarh

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... Appellant(s)

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versus

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1 - Deleted (Smt. Genda Bai Pathak) (Died) Honble Court Order Dated 01/08/2023.

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2 - Smt. Kusum Debey D/o Late Ramgulam Pathak, Aged About 65 Years R/o J.P.Vihar Mangla, Bilaspur, Tah. And Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh 3 - Smt. Sheela Choubey D/o Late Ramgulam Pathak, Aged About 68 Years R/o Near Gurudwara, 27 Kholi, Bilaspur, Tah. And Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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4 - Smt. Asha Diwan D/o Ramgulam Pathak, Aged About 60 Years W/o Late Govindhar, Present Address- S M I G- 17, Parijat Extension, Nehru Nagar, Bilaspur, Tah. And Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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5 - Smt. Lata Diwan D/o Late Ramgulam Pathak, W/o Vijaydhar Diwan, Present Address- S M I G- 17, Parijat Extension, Nehru Nagar, Bilaspur, Tah. And Dist. Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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6 - State Of Chhattisgarh, Through- Collector, Bilaspur, Chhattisgarh ...........Plaintiffs, District : Bilaspur, Chhattisgarh

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---- Respondents

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For Appellants : Mr. Ravindra Sharma, Advocate For R2to5 : Mr. Amit Kumar, Advocate For State : Mr. Aman Tamboli, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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This appeal has been preferred by the defendants under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 30.1.2015 passed by the learned Ninth Additional District Judge, Bilapur (C.G.) in Civil Appeal No.102-A/2014, whereby the learned first appellate Court has dismissed the appeal filed by the defendants and affirmed the judgment and decree dated 16.05.2014 passed by learned Civil Judge, Class-II, Takathpur District – Bilaspur (C.G.) in Civil Suit

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No. 7-A/2013.

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The appeal has been admitted on 24.09.2024 on the following substantial question of law :-

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"Whether the learned Courts below are justified in decreeing the suit on the basis of revenue entries, whereas the original defendant No. 1 was son of Ram Gulam in whose name the suit property was recorded?

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Additional following substantial question of law has also been framed on 30.04.2025 :-

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"Whether learned trial Court was justified in recording the finding that the partition has been taken place as mentioned in the revenue record and subsequent mutation has also been done on the basis of partition as mentioned in the revenue record?"

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The parties to this appeal shall be referred to hereinafter as per their description in the Civil Suit.

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Brief facts:-

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A) The plaintiffs filed a civil suit before the learned Civil Judge, Class-II, Takathpur for declaration, possession and permanent injunction and also declaration of order dated 24.08.2011 passed by the Tahsildar, Takhatpur as null and void mainly contending that the plaintiffs and defendants belong to same family and genealogy has also been annexed with the plaint to substantiate the fact that they belong to same family. It is also the case of the plaintiffs that they are Hindus governed by Hindu

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Law. It is also the case of the plaintiffs that the plaintiffs are in possession of the agricultural land situated at village Takhatpur, P.H.No.28, Revenue Circle and Tahsil - Takhatpur Khasra No. 105, area 0.817 Ha. which in subsequent paragraphs has been referred to as suit land. Apart from that the family has ancestral property at village Birgaon Tahsil Mungeli of which partition has already been taken place on 29.05.1972 between plaintiff No. 1 and defendant No. 1 and the said partition has been accepted by the parties voluntarily and since then they are in possession of their respective shares. It is also the case of the plaintiffs that in view of the partition, mutation has also recorded in 1981-82 at serial No. 24 of the mutation register wherein defendant No. 1 Shree Kumar Pathak has also signed.

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B) It is also the case of the plaintiffs that defendant No. 1 moved an application before the Tahsildar, Takhatpur for correction in the record of land on 31.03.2011 wherein the plaintiff No. 1 is party to the case but four daughters of the late Ram Gulam Pathak have not been arrayed as party to the case. Learned Tahsildar without giving opportunity of hearing to the plaintiffs passed the order for deleting the name of plaintiff No. 1 and ordered for recording the name of defendant No. 1. Against this order the plaintiffs preferred an appeal before the Revenue Court. It is also the case of the plaintiffs that since the partition has been taken place between the plaintiff No. 1 and defendant No. 1 in the year 1972 and accordingly names have also been mutated which has not been challenged before the appellate Court,

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therefore, the subsequent order dated 29.08.2011 passed by the Tahsildar may be declared null and void.

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C) It is also the case of the plaintiffs that as soon as they received the information about passing of the order of the Tahsildar, they published a notice in the newspapers on 21.11.2012 declaring that no one should purchase the suit property as this property belongs to the plaintiff No. 1 only, still defendant No. 1 has taken possession of the suit property and accordingly after recording of name of defendant No. 1 vide order dated 29.08.2011, he started negotiations for selling the suit property which is without authority and would pray for allowing the suit.

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D) Defendant No. 1 submitted written statement denying the allegations made in the plaint contending that no partition has been taken place between plaintiff No. 1 and defendant No. 1 on 21.05.1972. It has also been denied that they are in possession of their respective shares. It is also denied that at serial No. 24 of the mutation register name of plaintiff No. 1 has been recorded with the consent of defendant No. 1. It is the case of the defendant No. 1 that during the lifetime of late Ram Gulam he has solemnised two marriages. From the wedlock with his first wife defendant No. 1 was born and second wife is plaintiff No. 1 Genda Bai and Ram Gulam expired in 1971. Since late Ram Gulam and Defendant No. 1 were the only male members in the family, they constituted Coparcenary, therefore, late Ram Gulam and they had 1/2-1/2 shares in the ancestral property and after death of Ram Gulam, the plaintiffs and defendants are

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entitled to 1/6th share of the properties of late Ram Gulam. The plaintiffs without the information of the defendants with the collusion of Revenue Officials got their names recorded in the revenue record in 1974. Since, after partition in 1972, they were in possession of their respective shares, therefore, he has moved an application before the learned Tahsildar for correction in the revenue record. Learned Tahsildar after physical verification, materials on record and considering the fact that partition has already been taken in 1972, passed the order dated 29.08.2011 and recorded his name in the revenue record. As such, pleadings made in the plaint by the plaintiffs that names of plaintiffs and defendants have been mutated as per the entry No. 24 of the Mutation Register suffers from malafide and just to harass and cause agony to the defendant No.1, the present suit has been filed, therefore, the same is liable to be dismissed. The suit is also liable to the dismissed for non-joinder of necessary party as the defendant No. 1 has sold part of the suit land which was in his share to one Tulsingh Thakur though the plaintiffs have knowledge about this fact. It is also the case of the defendants that the ancestral property and house are situated at village Takhatpur and agricultural land is situated at village Amora, Birgaon and Parsakapa. It is also the case of the defendants that after death of Late Ram Gulam an oral partition has been taken place. Accordingly, defendants were given land situated at Takhatapur which is suit property and Khasra No. 518 area 4 decimal land on which house has been constructed. The

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house is situated at Pathakpara which is old house the plaintiffs and Gendabai were residing, therefore, in partition it was decided till Gendabai survives she will reside in the house and after her death, it will be acquired by defendant No. 1. In the said partition the plaintiffs received house at Takhatpur which plaintiff No. 1 has sold to her brother Lallu Prasad Dubey for sale consideration of Rs. 7 Lakh. In the said partition, the plaintiffs received agricultural land situated at Takhatpur Khasra No. 420 area 2 Acre, Khasra No. 422 area 1.75 Acre, Khasra No. 340 area 1.55 Acre, Khasra No. 421 area 2.22 Acre and Khasra No. 313 area 0.52 Acre and at Birgaon 4 Acres of land which she has sold, accordingly has has prayed for dismissal of the suit.

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E) On the pleadings of the parties, learned trial Court framed as many as 9 issues. Issue No. 1,2 and 6 are relevant, they are extracted below :-

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(1) D;k r[kriqj fLFkr oknHkwfe [kljk ua- 105 jdck 0-817 gs0 vkilh caVokjk fnukad 21-05-1972 ds vuqlkj okfnuh dzekad 01 dks izkIr gqbZ Fkh\

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(2) D;k rglhynkj dk ukekarj.k vkns'k fnukad 29-8-11 fof/k fo:) gksus ls 'kqU; g\

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(6) D;k oknHkwfe izfroknh dzekad 01 dh lgnkf;dh laifRr Fkh\

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F) The plaintiffs to substantiate their contention have examined Asha Diwan as PW/1, Kusum Dubey as PW/2, Lallu Prasad Dubey as PW/3, Vijay Kumar Tiwari as PW/4, Munna Shriwas as PW/5 and exhibited documents namely

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B-1, Kistbandi Khatauni 2012-13 as Ex.P/1, Khasra Panchasala 2012-13 as Ex.P/2, Mutation Register as Ex.P/3, Kistbandi Khatauni 81-82 as Ex.P/4, Khasra Panchasala 2003 to 2008 as Ex.P/5, Registered Notice as Ex.P/6, notice dated 03.12.2012 as Ex.P/7, Receipt dated 7.12.12 as Ex.P/8, order of Tahsildar as Ex.P/9, application before Tahsildar as Ex.P/10, notice as Ex.P/11, paper publication as Ex.P/12, Takhatpur Adhikar Abhilekh dt. 11.07.2013 as Ex.P/13, notice dt. 17.01.2014 as Ex.P/14, Receipts of Tahsildar Court from Ex.P/15 to Ex.P/17, Khasra Panchsala 1984 - 1985 as Ex.P/18, Khasra Panchsala 1982 - 1985 as Ex.P/19, Kistbandikhatauni 1988-89 as Ex.P/20, paper publication dated 21.11.2012 as Ex.P/21, Receipt dated 26.08.2013 as Ex.P/22, Mukhtiyar Nama dated 13.12.12 as Ex.P/23, Arthik and Jati Gadna 2011 as Ex.P/24, original partition deed dated 21.05.1972 as Ex.P/25. The defendant to establish his case has examined himself as DW/1 and Narayan Singh @ Gore Singh Thakur as DW/2 and exhibited documents namely Registered Saledeed dated 27.06.1974 as Ex.D/1 and Ex.D/2, Correction Register of Takhatpur as Ex.D/3 and Ex.D/4, Registered Saledeed dated 03.06.88 as Ex.D/5, Order sheets of SDO as Ex.D/6 and Ex.D/7, Medical Certificate as Ex.D/8, paper

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publication dated 8.12.2010 as Ex.D/9, Notice dated 03.12.2012 as Ex.D/10, Postal Receipts as Ex.D/11, Notice as Ex.D/12, Reply to notice as Ex.D/13, Agreement dated 29.09.2012 Ex.D/14, Sale deed 29.09.2012 as Ex.D/15, Kistbandikhatauni as Ex.D/16, Khasrapanchsala 2013-14 as Ex.D/17, Kistbandikhatauni 2013-14 as Ex.D/18, Form P/2 2013-14 as Ex.D/19.

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G) PW/1 Asha Diwan in her examination-in-chief as provided unde Order 18 Rule 4 of the CPC has reiterated the submission made in the plaint. She was cross-examined by the defendant wherein the factum of partition deed dated 21.05.1972 remained unrebutted and she has stated that in view of the said partition, name of her mother Gendabai was recorded in the revenue record on 16.11.1974. She has denied that defendant No. 1 has submitted any application for correction in the revenue record and also denied that the notice was served to her mother but despite notice she did not appear before the Tahsildar. The witness has voluntarily stated that notice has not been received by her mother. She has denied that her mother was residing in Pathakpara in 2011. She voluntarily stated that her mother was residing with her at Bilaspur. She has admitted that the partition deed was never registered and also admitted that in the partition deed it has been mentioned that within a month the

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partition deed will be registered.

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H) PW/2 Kusum Dubey in examination in chief has reiterated the stand taken in the plaint and in her cross-examination she has admitted that on the basis of partition, mutation has been done. But she has not produced any document with regard to correction of the revenue record. She has admitted that the stamp used in the partition deed has been purchased by her husband.

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I) PW/3 Lallu Prasad Dubey who was witness of the partition deed has stated that other two witnesses namely Balwant and Narmada Singh have expired. He was extensively cross-examined by the defendant wherein he has admitted that he has not put his signature in Ex.P/25 but he could not assign any reason why he has not signed. He has admitted that the partition deed has been dictated by late Swasthya Lal Pathak and he was the subscriber of the partition deed. He has also admitted that as per the partition deed, the deed should be registered within a month. He has admitted that there is no mention about khasra numbers in the partition deed.

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J) PW/4 Vijay Kumar Tiwari in his examination-in-chief has reiterated the stand taken by the plaintiffs in the plaint. He has admitted that as per the partition, the plaintiffs and defendants are in possession of their respective shares. He

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has also admitted that Gendabai is residing with her daughter at Bilaspur for the last 7-8 years. In his crossexamination he has admitted that he is not aware about the partition dated 21.05.1972. PW/5 Munna Shriwas reiterated the same which has been stated by PW/4 Vijay Kumar Tiwari.

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K) Defendants' witness DW/1 Defendant No. 1 in his examination in chief has reiterated the stand taken by him in the written statement. He was cross-examined by the plaintiffs wherein he has stated that he is not aware that Gendabai is residing with her daughter for the last 7-8 years. He has denied that he has deliberately not sent the notice to the plaintiff No. 1 at her address at Bilaspur. He has admitted that no application for paper publication was submitted before the Tahsildar. He has denied that on the basis of Ex.P/25 name of Gendabai has been recorded. He has admitted that he is not aware that in the mutation register he and Gendabai have put their signatures. He has also admitted that against the mutation at serial No. 24 he has not preferred any appeal. He has admitted that he has not challenged the sale deed executed by the Gendabai in favour of her son-in-law. He has admitted that the said property which was given to Gendabai was an ancestral property.

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L) Learned trial Court considering the factual matrix of the case and after appreciating the materials on record decreed the suit. Learned trial Court recorded its finding that from bare perusal of the Ex.P/3 Mutation Register and Stamp No. 7439 dated 15.11.1974, it is quite vivid that unregistered partition has been taken place on 19.11.1974 and since, the partition has been taken place between defendant No. 1 and plaintiff No.1 therefore, merely on the basis of non-submission of partition deed no presumption can be drawn that partition dated 19.11.1974 has not been executed. Accordingly, answered issue No. 2 and 3 in favour of the plaintiffs and declared the mutation order dated 29.08.2011 as null and void. Learned trial Court has further held that Gendabai is the sole title holder of the suit property and restrained the defendant from selling or mortgaging the suit property and also directed him to vacate the suit property within a month.

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M) Being aggrieved with the judgment and decree passed by the learned trial Court, the defendants preferred civil appeal before the learned Ninth Additional District Judge, Bilaspur. Learned first appellate Court dismissed the appeal and affirmed the finding of the trial Court by re-appreciating the materials on record. Learned first appellate Court recorded its finding that the plaintiffs have obtained suit property on partition dated 19.11.1974 not on 21.05.1972 and Ex.P/3 is a public document which has been written by a public servant in the course of his official duty therefore no adverse presumption can be drawn

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regarding correctness of the document. Accordingly, the first appellate Court dismissed the appeal. Being aggrieved with both the judgments and decrees, the defendants have preferred present Second Appeal before this Court. The second appeal was admitted by this Court on aforesaid substantial questions of law.

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Learned counsel for the appellants would submit that the judgments and decrees passed by both the Courts below are completely illegal, erroneous and contrary to the law. Both the Courts below have erred in recording their finding that the partition has not been taken place on 21.05.1972 and the suit property has been recorded in the name of the plaintiff pursuant to partition dated 19.11.1974. The Courts below should not have relied upon the inadmissible document Ex.P/25 and entry number 24 in the year 1981-82 to be valid whereas the plaintiffs have categorically pleaded about the partition dated 21.05.1972 and also adduced evidence to this effect. Learned Courts below should not have ignored this evidence, as such, the judgments passed by both the courts below suffer from illegality and irregularity and same are liable to be set aside and would pray for allowing the appeal.

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On the other hand learned counsel for respondents would submit that the judgment and decree passed by the learned courts below are strictly in accordance with law. He would further submit that learned Courts below have rightly appreciated Ex.P/3 wherein it has been mentioned that partition

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has been taken place on 19.11.1974 as it is public document which has been prepared by a public servant in course of his official duty. Therefore, he would pray for answering the substantial questions of law in favour of the respondents and would pray for dismissal of the appeal.

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

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Observation and analysis on Substantial Question of law

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No.1

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Learned counsel for the appellants would submit that learned trial Court has committed illegality in decreeing the suit on the basis of revenue record i.e. mutation register whereas the suit property was recorded in the name of defendant No.1 as such, both the Courts' below should not have decreed the suit.

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Per contra, learned counsel for the respondents would submit that the defendant in his evidence has categorically admitted that the suit property was an ancestral property and the plaintiff has exhibited partition deed Ex.P/25 dated 21.05.1972 wherein the defendant has put his signature and he has also admitted in his cross-examination that he has put his signature and thereafter entries were made in the revenue record Ex.P/3. It is not in dispute that the revenue record does not confer any title over immovable property but if there are other relevant materials on record to substantiate such entries in the revenue records then it can be taken into consideration. In the present case the

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partition deed dated 21.05.1972 was very much placed on record and in the Ex.P/3 also the signature of defendant No. 1 has been successfully proved by the plaintiffs and even no material to challenge the veracity, genuineness of partition deed has been placed on record. Therefore, both the courts below have not committed any irregularity or illegality in believing the entries in the revenue record. This view of the court is fortified by the law laid down by the Hon'ble Supreme Court in case of P. Kishore Kumar vs. Vittal K. Patkar {2023 INSC 1009} wherein the Hon’ble Supreme Court has held as 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.{(1996) 6 SCC 223 } 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.

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This was further affirmed in Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors.{(1997) 7 SCC 137} 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.{2021 SCC OnLine SC 802} 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.{(1977) 2 SCC 49} 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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It is also curious to note that the plaintiff has placed on

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record endorsements issued by the Commissioner in favour of four other tenants, but has failed to produce one in his own vendor’s name. We cannot help but take an adverse view of the same against the plaintiff, since it only goes towards making denser the cloud which has been cast on the plaintiff’s title.

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Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do.

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But, considering the pleading and evidence brought on record,

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particularly the admission made by the defendant in the written statement that the suit property is an ancestral property and no evidence was brought on record by defendant No. 1 to prove that the suit property was acquired him and no evidence was brought on record regarding denial of partition on 21.05.1972. The defendant No.1 in his evidence has denied that the signature in Ex.P/3 in the mutation register the signature is not his signature. But he has not placed any materials to rebut the same as burden lies upon him to disapprove the signature. In absence of sufficient materials on record it cannot be said that learned Courts below have committed illegality in declaring the plaintiffs as title holder of the suit property which has been received by her through partition.

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From the record it is quite vivid that it is neither the case of the plaintiffs nor defendants that the partition has been taken place on 19.11.1974. The plaintiffs have made specific averments in

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their plaint that the partition has been taken place on 21.05.1972 and the witness and also the subscriber of the partition deed have been examined and cross-examined but no material to deny the existence of partition deed has been placed on record by defendant by adducing cogent evidence. Both the courts below after appreciation of materials on record have rightly held that the plaintiffs are the title holder of the suit property. Thus, the substantial question of law No.1 deserves to be answered against the defendants and it is held that plaintiffs are the title holder of the suit property as per the partition taken place between the parties on 21.05.1972.

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The plaintiffs by the evidence of PW/1 has categorically pleaded and established that the partition has been taken place on 21.05.1972 and the subscriber and the witness of the partition deed have also stated that on the partition deed defendant No.1 has put his signature. No such attempts were made by defendant No. 1 to dilute the fact of putting his signature. Even no handwriting expert was examined or any application for examination of the document through hand writing expert was moved by the defendants. Thus, it is held that the partition has been taken place on 21.05.1972 and on the basis of partition, plaintiff No.1 is entitled to be declared as title holder of the suit property. Both the courts below on appreciation of evidence and materials on record, recorded that partition has been taken place with regard to the suit property and they have further recorded that the defendant has moved an application for

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mutating his name but notice was not served to plaintiff No. 1 and in absence of the plaintiffs, mutation proceeding was initiated.

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The plaintiffs' witness PW/1 has categorically admitted in her evidence before the trial Court that for the last 7-8 years plaintiff No. 1 is residing at Bilaspur along with her daughter and son-inlaw. No rebuttal to this effect has been made by the defendants. According to the case of the plaintiffs partition has been taken place on 21.05.1972 whereas as per the judgment and decree relying on Ex.P/3, it is 19.11.1974. Nothing has been brought on record with regard to partition dated 19.11.1974. From the evidence of the plaintiffs as well as defendants, it is established that the partition has been taken place on 21.05.1972. Therefore, the finding recorded by the trial with regard to partition is confirmed and the defendants have not challenged mutation entry at Serial No. 24 which has recorded in the year 81-82. Therefore, the substantial questions of law No.1 deserves to be answered against the defendants and in favour of the plaintiffs.

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Observation and analysis on Substantial Question of law No.2

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From the evidence of PW/1 Asha Diwan and PW/4 Vijay Kumar Tiwari it is quite vivid that that the plaintiff No.1 was residing at Bilaspur with her son-in-law and no notice during mutation proceeding was served upon the plaintiff No. 1 which is non-

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compliance of Section 110(5) of the Chhattisgrah Land Revenue Code which provides that before passing the mutation order all the interested persons should be served upon the notice. Section 110(5) of the Land Revenue Code reads as under :-

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(5) The Tahsildar shall, after giving the interest persons a reasonable opportunity of being heard and after making such further inquiry as he may deed necessary, pass orders relating to the mutation and shall make necessary entries in such other relevant land records including the khasra and map of the village, as the case may be. The patwari shall verify the records by correcting them within prescribed time period, after which the Tahsildar shall file the case.

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It is pertinent to mention here that though it is incumbent upon the defendant No.1 to prove that notice was duly served upon plaintiff No. 1 still no evidence has been adduced by him before the trial Court that subsequent mutation order which has been passed in the year 2011 has been passed after service of notice to the plaintiffs. On the contrary, the plaintiffs have filed order sheet dated 18.11.2011 and subsequent order sheets in the Revenue Case No. 44/A-6/2010-11 wherein it has been stated that notice was served through paper publication on 08.08.2011 wherein the address of plaintiff No. 1 was shown as resident of Pathakpara, Tahsil Takhatpur District Bilaspur. As such, learned Tahsildar has committed illegality in passing the impugned order dated 29.08.2011 without notice to plaintiff No.1, therefore, learned trial Court has rightly set aside the mutation order dated 29.08.2011 as null and void.

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This Court exercising its power under Order 41 Rule 33 of the CPC can pass a decree or make an order which ought to have

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passed in the interest of justice. On the basis of pleading and evidence led by the parties, it is held that the partition has been taken place on 21.05.1972 and mutation has been taken place as per Ex.P/3 as such, the judgment and decree passed by both the courts below are modified to the extent that the partition has been taken place on 21.05.1972 and not on 19.11.1974. The remaining part of the judgment and decree passed by the learned trial Court affirmed by learned first appellate shall remain intact.

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