Shyamu Prasad Lahre v. Lallu Lahre

: Mr. Bharat Rajput, Advocate : None present though served : Mr. Ajay Kumrani, P.L. Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN 11:07:09 +0530 27/10/2025

1. Appellants/plaintiffs have filed this appeal questioning the legality and sustainability of the impugned judgment and decree dated 18.10.2016, 2 passed in Civil Suit No.3-A/2016, whereby learned 4th Additional District Judge, Bilaspur, District – Durg (C.G.) has dismissed the suit filed by appellants/plaintiffs.

2. Facts relevant for disposal of this appeal are that appellants/plaintiffs have filed a civil suit seeking relief that the sale deed dated

14.10.2015 executed in favour of defendant No.1 and 2, by defendant No.3 and 4 be declared as null and void, further to declare that defendant No.3 and 4 are not having any right or title to execute the sale deed in favour of defendant No.1 and 2 of the property mentioned therein and further that defendants No.1 and 2 did not get any right or title over the suit property. Further relief is sought that plaintiff and defendant No.1, 3 and 4 are having equal rights over the suit property on the ground that the suit property is an ancestral property of plaintiff, defendant No.1, 3 and 4. It was pleaded that suit property was owned and possessed by their grand father late Chintaram and mother Ramoti Bai and it was recorded in their names in revenue records. Chintaram died in the year 1988-89, and his mother Ramoti Bai was pre-deceased. Chintaram was survived by his two sons Bhaiyaram and Itwari. Plaintiffs and defendant No.1 are grand children of late Bhaiyaram and father of defendant No.3 and 4. It is also pleaded that after death of Chintaram, there was oral partition between the parties, which includes the property in dispute as also the other property. Name of defendants No.3 and 4 is recorded in revenue records after receiving the property, subject matter of dispute, in partition and property in dispute is not the self acquired property of defendant No.3 and 4. It is also pleaded that no consideration is paid as mentioned in the sale deed to defendant No.3 and 4 by the purchaser of the suit 3 property i.e. defendant No.1 and 2. Plaintiff after getting knowledge that sale deed was executed in favour of defendants No.1 and 2, they have made objection before the Sub-Registrar, Bilaspur and further submitted an application on 20.10.2015 but no action was taken on their objection and application.

3. Defendants No.3 and 4 submitted written statement to the plaint supporting the pleadings made in the plaint. It was pleaded that defendants No.3 and 4 were not having any intention to sale the land in dispute. Their names was continuously being recorded in the revenue records and that they have not executed sale deed on

14.10.2015 in favour of defendant No.1 and 2. The suit property is the ancestral property in which plaintiff, defendant No.1, defendants No.3 and 4 are having equal rights. They have not received any sale consideration after any property is transferred pursuant to sale deed, they are having no knowledge about it and such transfer of property is illegal and void.

5. Defendant No.1 and 2 were proceed ex-parte before the trial Court. Learned trial Court based on the pleadings made by respective parties, formulated as many as four issues for consideration and after conclusion of trial held that the plaintiffs failed to prove that there was oral partition between defendant No.3 and 4 and Itwari, S/o. Chintaram, trial Court also found not proved that plaintiffs and defendant No.1, 3 and 4 are having equal rights and share in the property in dispute and further that plaintiff is not entitle for the relief of declaration of sale deed dated 14.10.2015 to be null and void, and dismissed the suit by the impugned judgment and decree.

6. Learned counsel for appellants/plaintiffs would submit that learned trial 4 Court erred in dismissing the entire suit. He contended that there is specific pleading by plaintiffs that suit property, subject matter of sale deed was an ancestral property and even after recording a finding that the partition as stated by plaintiffs and defendants No.3 and 4 could not be proved, then also there is equal right and share between plaintiffs and defendant No.1, 3 and 4 over the suit property. He contended that defendant No.3 and 4 in their reply written statement have clearly pleaded that the property was ancestral they have not executed any sale deed within their knowledge and no consideration is transferred to them, which was overlooked by learned trial Court.

7. Learned counsel for respondent/State would submit that the dispute with regard to property is between respective private parties, therefore, he is not making any submission on merits of claim of appellants.

8. I have heard learned counsel for parties and perused the documents placed on record.

9. Perusal of the judgment and decree would show that learned trial Court while appreciating the evidence documentary and oral available on record has considered that the plea of plaintiffs in plaint is that the land bearing Kh. No. 783/4 measuring 0.41 acres to be ancestral property and property, subject matter of the suit and other properties have been partitioned between Itwari and defendant No. 3 and 4 by oral partition, however, the learned trial Court on appreciating the evidence had recorded that plea of partition as pleaded in plaint could not be proved by plaintiffs as there is no specific evidence that which portion of property and which khasara number of land has been given 5 to which co-sharer. It is also not pleaded and stated as to in front of whom, the oral partition has taken place and recorded a finding that plaintiffs failed to prove the plea of oral partition between the plaintiffs and defendants No.1, 3 and 4.

10. Perusal of evidence of Shyamu Prasad (P.W.-1) i.e. plaintiff No.1 would show that he submitted affidavit under Order 18 Rule 4 making statement in examination-in-chief. In para-4 of affidavit there is statement that after 3-4 years of death of Chintaram, his great grand father, there was oral partition between defendant No.3, 4 with other son of Chintaram – Itwari and the property in dispute fallen in share of defendants No.3 and 4. There is no statement of this witness as to how partition took place and before whom, when it is a claim/plea of plaintiffs that there was oral partition. No other independent witnesses or plaintiffs are examined by plaintiffs to prove the plea of oral partition. In the above facts of the case and evidence available on record in the opinion of this Court, the finding recorded by learned trial Court that the plea of oral partition of property between Itwari and defendant No.3 and 4 is not found proved, cannot be said to be an erroneous or perverse finding. I do not find any good ground to interfere with the finding recorded by learned trial Court with respect to Issue No.1.

11. So far as the finding recorded by learned trial Court with respect to Issue No.2 with regard to equal share of plaintiffs, defendants No.1, 3 and 4 on the suit property is concerned, the learned trial Court in para- 13 of impugned judgment has considered the said plea and the evidence in this regard and recorded a finding that no document is placed before the the learned trial Court showing the entries made in 6 the revenue record of the land bearing Kh. No.783/4. The documents which is relied upon by learned counsel for appellants to make his submission that earlier the land was recorded in the name of Chintaram referring to Ex.P-1, which shows that land bearing Kh. No.783/4 measuring 0.41 acres of land in the name of Chintaram. Land bearing Kh. No.783/4 is recorded only in the name of Dwarika i.e. defendant No.3 in the revenue records filed before the trial Court as Ex.P-3 and there is no mention as to in what capacity the land is recorded in name of defendant No.3 whether he received as successor after death of Chintaram or is a self acquired property.

12. It is also pleading of plaintiffs that the property subject matter of sale deed is the ancestral property, therefore, in accordance with the provisions under Section 101 and 102 of the Evidence Act, burden lies upon the plaintiffs to prove the facts as pleaded in the plaint that property subject matter of the sale deed and subject matter of the suit is the ancestral property. In absence of any documentary or admissible evidence placed on record in the opinion of this Court it cannot be said that the property was ancestral property and the plaintiffs and defendants No.1, 3 and 4 are having equal rights and share.

13. So far as the challenge to the sale deed on the ground that defendant No.3 and 4 are having no knowledge about execution of sale deed and no consideration is transferred to them, it is not a case where the suit is filed by defendants No.3 and 4 questioning the sale deed. The suit is filed by plaintiffs asserting their right on the property on the ground that the property, subject matter of sale deed is the ancestral property and there was oral partition between defendants No.3 and 4 with 7 Itwari, another son of Chintaram, this Court in exercise of power under Section 96 of C.P.C. has to consider whether the learned trial Court has committed any error in passing the impugned judgment and decree or the finding recorded by learned trial Court is perverse to the evidence available on record by re-appreciating the evidence available on record. Upon perusal of pleadings and evidence available on record I do not find any evidence produced by plaintiffs and defendants No.3 and 4 that the property subject matter of the sale deed is earlier recorded in their ancestors name i.e. Chintaram in revenue records, therefore, in absence of specific evidence in this regard, in the opinion of this Court, learned trial Court has not committed any error in dismissing the suit recording a finding that the plaintiffs failed to prove their case by placing admissible evidence. It is settled law that the burden to prove the facts is upon the party who assert such facts, in which plaintiffs failed.

14. For the foregoing discussions I do not find any good ground to interfere with the finding recorded by the learned trial Court. The appeal being sans merit, is liable to be and it is hereby dismissed.

15. The Decree be drawn accordingly. Sd/- (Parth Prateem Sahu) Judge Balram