INDRAJEET v. Sundarlal Mahar

Judgment

1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the appellant against the impugned judgment and decree dated 25.02.2016 passed by the VIIIth Additional District

Judge, Raipur, in Civil Appeal No.47/2014 whereby the First Appeal filed by the appellant against the impugned judgment and decree dated

14.02.2014 passed by Vth Civil Judge Class-II Raipur in Civil Suit No.13-A/2013 has been dismissed and the judgment and decree of trial court has been affirmed. 2

2. For the sake of convenience, the status of parties shown in the Civil Suit are being taken in the present Second Appeal.

3. The plaintiff filed a Civil Suit for partition of his half share of the suit property Khasra Nos. 563,593 and 633 total area 3.02 Acre of holding number 214 and Khasra Nos. 564,662,167,589,661,710 and 923 total Area 6.04 Hect. of holding numbers 214 and 213, situated at village Pacheda, Tehsil Abhanpur, District Raipur. He also claimed that earlier mutation in the name of defendant No.1 is not binding upon him.

4. The plaintiff has pleaded in the suit that the suit property are his ancestral property in which he is having half share as per his right of inheritance. The father of defendant No.1 got mutated the entire land in the name of defendant No.1 which is not binding upon him. The plaintiff is entitled for his half share of the suit property which got mutated by the defendant No.1 with collusion of State authorities and tried to alienate the share of the plaintiff for which he filed the Civil Suit. The defendant No.1 contested the suit of the plaintiff and filed his written statement with the pleading that the suit property of Khasra No.564,589,661,662,710 and 923 was his ancestral property owned by one Sonau. After his death, his property was recorded in the name of Kishore and Bhagirathi. The said property was earlier partitioned between the father of plaintiff and defendant No.1. The suit property of Khasra No.563,593 and 663 was the service land of father of defendant No.1 upon which ownership lease (Bhumiswami Patta) was granted vide order dated 15.09.2003 in the revenue Case No.39-A/19/2002-03. Since the partition was already taken place in the year, 1992 between the defendant No.1 & Kishore, therefore holdings 3 were separated in which the plaintiff was the witness, he cannot claim partition again over the suit land. In the earlier partition, the plaintiff got the land of Khasra No.564,661/1,710 and 923 which were renumbered as 1063,1068,1427 and 459 respectively in which the plaintiff is in possession and the parties are in their settled possession in accordance with the partition effected earlier. The plaintiff is having no right or title over the suit property which belongs to share of defendant No.1 and some of the properties is of service land of his father. Therefore, the suit is liable to be dismissed.

5. On the basis of pleadings made by the parties, the trial court made the issues that whether the suit property is the ancestral property of plaintiff and whether he is having half share over the suit property and also that whether the suit property was already partitioned between defendant No.1 and Kishore earlier.

6. In support of the case of respective parties, the plaintiff examined himself as PW-1, Itwari, PW-2 (wrongly numbered as PW-3) and Gopal Ram Verma, PW-3 (wrongly numbered as PW-4) and he relied upon document Ex.P/1 which is Misal Bandobast of the year, 1929-30, Ex.P/2, P/3, P/4 and P/5 which are revenue proceedings with respect to declaring Bhumiswami Rights over the service land in the name of Bhagirathi. The defendant No.1 examined himself as DW-1 and relied upon documents Ex.D/1 & D/2 which is mutation register of the year, 1991 to 1993, Ex.D/3 which are the ordersheets dated 19.12.2005 passed in Civil Suit No.165-A/20074 and renumbering list Ex.D/4.

7. After appreciation of oral as well as documentary evidence led by the parties and after having gone through the records, the trial court has 4 held that the suit land of Khasra No.563,593 and 663 are the service land of the father of defendant No.1 and the plaintiff is not entitled for any share over it. With respect to other property, the sons of Bhagirthi namely Sunderlal, Kishore and Rajkumar have partitioned their property and now the plaintiff cannot claim partition again over the suit property and has dismissed the suit of plaintiff. Relying upon Ex.D/1 & D/2 the trial court held that there was an earlier partition between the parties. The trial court has also considered while deciding the issue No.5&7 that since there is non-joinder of necessary party in the suit as all the members of the family have not been made as party to the partition suit and in the earlier civil No.165-A/2004 the other members of the family were the party and therefore the present suit is not maintainable.

8. The first appellate court has also affirmed the findings of the trial court holding that the suit land of Khasra Nos.563,593 and 663 are service land of the father of defendant No.1 on which the ownership right has been given to him in the revenue proceeding Ex.P/3. During the consolidation proceeding, the said lands were allotted new Khasra numbers i.e. 977,1064,1070 and 1209 and since it was the service land of the father of defendant No.1, the plaintiff is having no right or title over these properties and not entitled for any partition. So far as other properties are concerned, the plaintiff himself has admitted in his evidence that the father of defendant No.1 was his younger brother. After death of father of defendant No.1 his sons Sunderlal (defendant No.1), Kishore and Rajkumar have partitioned their property and since the property was already partitioned earlier, it cannot be reopened and 5 the plaintiff is not entitled for partition again. The plaintiff has filed Misal record of the year 1929-30 (Ex.P/1), but the Khasra Numbers of the suit land are not mentioned in the said Misal record and therefore the plaintiff could not establish that the suit property are the property belongs to their own ancestor. In the document Ex.D/1 & D/2 it is also clearly mentioned that parties have mutually partitioned their holdings and their shares have been separately recorded in the revenue records. The plaintiff Narayan have acknowledged the said partition and his signature is also there in the said document Ex.D/1&D/2 and accordingly the first appeal filed by the appellant has been dismissed by the first appellate court.

9. Learned counsel appearing for the appellant would submit that the suit property is joint family property of the parties and merely by settlement the right of plaintiff cannot be denied to get partition over the suit property. The trial court as well as the first appellate court has erred in appreciating the fact that in the year, 1992 there was a partition between plaintiff and defendant No.1 and also with Kishore. He would also submit that the courts below have erroneously relied upon documents Ex.D/1&D/2 as partition deed. There is no document which shows that the plaintiff has also obtained partition from the other family members in the family partition. Being son of Sonau, who was brother of late Bhagirathi, he is entitled for half share of the suit property, however, the courts below have erroneously appreciated the evidence available on record and their findings are perverse.

10. I have heard the counsel for the appellant, perused the record of trial court and have gone through the evidence

11. The submissions made by the counsel for the appellant is that, there 6 was no earlier partition between their ancestors and the plaintiff is entitled for partition of his half share over the suit property, however, the defendants claim is that earlier there was a partition between the family members and as such the plaintiff cannot claim for partition again. Another claim of defendant No.1 is that, the suit land of Khasra Nos.563,593 and 663 are the service land of his father and Bhumiswami rights have been given by virtue of the order dated

15.09.2003 Ex.P/6. It is the case of plaintiff himself that after death of Bhagirathi there was a partition between Sunderlal, Kishore and Rajkumar and they got mutated their share of land in their own name. It is also the claim of the plaintiff that his father was also a Kotwar and on

15.09.2003 the father of defendant No.1 have exchanged his land and got Bhumiswami right over the suit land. However, in his cross examination he admits that earlier also he filed a civil suit for partition before the civil court in which he made Bhagirathi, Motin Bai and Kishore as a party defendant in that suit. That suit was dismissed, however, he has not disclosed that fact in the present suit. He has not made Kishore as party defendant in the present suit because he has already obtained partition of 3 Acres of land. He also admits that he made an application for partition of the land before the Tehsildar, Abhanpur which was dismissed. He admits that father of defendant No.1 was Kotwar and defendant No.1 is working as Kotwar at present. He also admits that Bhagirathi obtained 10 Acres of land as service land and he did not know as to whether Bhumiswami rights were given to Bhagirathi over the service land or not. He admits that the land 7 which is presently recorded in his name is the land of his father. Though he denied earlier partition between the party, however, from the record it transpires that in the documents Ex.D/1&D/2 the acknowledgment of partition by the plaintiff is there and his signature is also there in the said documents Ex.D/1 & D/2.

12. One more fact to be noted here is that earlier the plaintiff had filed a civil suit for partition bearing Civil Suit No.165-A/2004 which was also for a partition, however, that suit was dismissed for want of prosecution on 19.12.2005 and thereafter he again filed this present civil suit only against the defendant No.1 Sunderlal whereas in the earlier suit the other family members were also party.

13. Considering the evidence led by the parties, the trial court as well as the appellate court have concurrently held that suit land of Khasra Nos.563,593 and 663 are the service land of father of defendant No.1 and Bhumiswami rights have been conferred upon it vide order dated

15.09.2003 in which the plaintiff is not entitled for any share and it is not of his ancestral property. Further, the other properties of family had already been partitioned between the family members. The plaintiff had earlier a civil suit for partition which got dismissed and the present suit for partition is filed only against the defendant No.1 and other family members are not made party defendants and as such there is defect of non joinder of necessary party. The fact of earlier partition is purely the disputed question of fact which has been concurrently adjudicated by the trial court as well as the first appellate court.

14. Since the fact of earlier partition was found proved by the courts below, the partition which had already been taken place earlier cannot be 8 reopened, as has been held by the co-ordinate Bench of this court in Shiv Balak Vs. Dalpat, Second Appeal No.82 of 2008, decided on

17.09.2020.

15. In Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, 2012 (7) SCC 288, the Hon’ble Supreme Court held in paragraph 36 & 37 as under : “36.In Major Singh v. Rattan Singh (Dead) by LRs and others[15], it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.

37. In Vidhyadhar v. Manikrao and another[16], it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors.”

16. After having gone through the pleadings of the parties and the oral as well as documentary evidence led by the parties, this court does not find any perversity. The findings recorded by the courts below are based on proper appreciation of evidence and this court does not find any question of law involved in the case for its determination.

17. Accordingly, the Second Appeal is dismissed without noticing to other side. The parties shall bear their own cost. Sd/- (Ravindra Kumar Agrawal) Judge