HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. 219 OF 2007 APPELLANTS DEEENDANTS RESPONDENT PLAINTIFFS VERSUS Smt. Sharda Devi and others Ramakant Pandey and others Post for pronouncement ofiudgmenton 27/09/2011. 11 Sd/- T.P.Sharma Judge s ^y sf HIGH COURT OF CHHATTISGARH AT BD-ASFUR SBCOND APPEAL N0. 219 OF 2007 APPBLLANTS DEFENDANTS 4. RESPONDENT PLAINTIFFS VERSUS 1. 2. 3. RESPODNENT DEFENDANTS 4. 5. Smt. Sharda Devi, Wd/o Shri Bahadur Lal Gauraha, Resident of Village Gataura Tahsil 8s District Bilaspur (Chhattisgarh) Smt. Vishwakanta Mishra, W/o Shri Ravikant Mishra, Resident of VU1. Sarson Near Siwanl, Tah. Janjgir, District Janjgir Champa (Chhattisgarh) Smt. Suryakanta Pandey, W/o Shri Bhevendra Pandey, Resident of VUlage Gataura Tahsil & Distiict BUaspiir (Chhattisgarh) Smt. Devkanta Sharma, W/o Shri Narendra Shanna, Resident of VUlage Beltukri TahsU Takhatpur, District Bilaspur (Chhattisgarh) Ramakant Pandey, S/o Shri Gajadhrar Prasad Pandey, Resident of VUL Mudpar, Tahsil Champa District Janjgir Champa (Chliattlsgarh) Smt. Anju Sharma, W/o Shri Dinesh Sharma, Resident of ViU. Changori Near Siwani, Tah. Janjgir, District Janjgir-Champa (Chhattisgarh) Umakant Pandey, S/o Shri Gajadhrar Prasad Pande^- R/o of Village Mudpar, Tah. Champa, District JanjgiT-Champa (Chhattisgarh). State of Chhattisgarh Through fhe CoUector Bilaspur District BUaspiir (Chhattisgarh) Gajadhrar Prasad Pandey, S/o Late Dwarika Prasad Pandey, R/o of VUlage Mudpar, TahsU Champa District Janjgir Champa (Chhattisgarh) SECOND APPEAL UNDER SECTION 100 OF CTVIL PROCEa»URE CODB. 1908. (SB :Hon'ble Mr. T.P.Sharma, J.) Present :- Dr. N. K. Shukla, Sr. Advocate with Shri Sanjay K. Agrawal, Advocate SE Shri Sudeep Agrawal, Advocate for the appellants. Shri Pramod Verma, Sr. Advocate with Shri Sanjay Shyam Agrawal, Advocate & Shri M.L. Pastore, Advocate for the respondent No. l. Shri Ravish Verma, Advocate for the respondent No. 3. Shri Vinod Kumar Tckam, P.L. for the Statc/respondent No. 4. Shri Shailendra Soni, Advocate on behalf of Shri R.K. Tiwari, Advocate for the respondent No. 5. None for the respondent No. 2. JUDGMENT (Passedon 27/09/2011) By fhis second appeal iinder Section 100 of the Civil Procedure Code, 1908 (in short the Code') appellants have challenged fhe legallty and propriety of the judgment and decree dated 28/4/2007 passed by 9th Additional District Judge (F.T.C.), Bilaspur (C.G.) in CivU Appeal No. 30-A/2005 reversing the judgment and decree dated 18/10/2003 passed by 4th Civil Judge Class-II, BUaspur (C.G.) in CivU Smt No. 214-A/2002 whereby 4th Civil Judge Class-U, Bilaspur (C.G.) has decreed the suif for declaration, partition & separate possession filed on behatf of respondents No. 1 to 3 while reversu^ the judgment and decree Lower Appellate Court has declared % share of respondents No. 1 to 3 &5 along wifh appellants. Present second appeal has been admitted for consideration on the foUowing substantial questions oflaw:- "1. Whether the Lower AppeUate Court was right in holdtng m Pccragraph-13 that in the absence of specijRc plecuding the suit property was self-acquired property of KapQncxth? 2. Whether thejudgment and decree ofthe Lower Appellate Court is liable to be set- asate as it does not reftects its conscious dpplication of mind on all the issues rcdsed in the appeal by the appellantsP' 3. As per pleading of ftie parties, respondents are sons and daughters of deceased Phekmlbai and respondent No. 6 is a husband of deceased Phekinlbai, sister of Bahadurlal i.e. father of appeUants No. 2, 3 & 4 and husband of appeUant No. 1. Father of Bahadurlal & Phekimbai namely Kapilnath was owner of disputed land measuring 22.90 Acres situated at vUlage Gatora, District BUaspur. After death of KapUnath, his son & daughter inherited the property left by hma. After deafh of son & daughter of Kapilnath namely Bahadurlal & Phekinibai, present appellants & respondents No. 1 to 3 &6 succeeded property as hetrs of Bahadurlal & Phekinibai. Present appellants have succeeded in mutating their names ia Revenue Record in exclusion names of respondents No. 1 to 4 & 6. Revenue appeal was filed and after dismissal of appeal, sult for declaration, partition & possession was ffled. By filini written statement, present appellants have denied the adverse aUegation and spectficalty pleaded that Phekinibai had relinquished her share over the sult property after receiving Rs. 20,000/- from Bahadurlal fhen Bahadurlal applied for //^ Sf 1 mutation before the Revenue Court and his name was mutated in Revenue Record. Respondents No. 1 to 4 have not filed suit within limitation and smt is barred by limitation. 4. After providmg an opportunity of hearing to fhe parties, leamed 4*h Civil Judge Class-U, Bilaspur (C.G.) has partialty decreed the suit and holdinp Bahadurlal as coparcener decreed fhe suit to fhe extent of *4 share, same was chaUeneed before the Lower Appellate Court by present appellants in which respondents No. 1 to 3 have filed cross-objection whUe dismisstng the appeal, cross-objection filed on behatf of respondents No. 1 to 3 had been decreed and respondents No. 1 to 3 along wifh respondent No. 6 were declared as a % share holders of property. During course of trial, initially respondent No. 6 was plaintiff but he has not supported the case of plaintiff then he was transposed as a defendant. Respondent No. 6 Gajadhar, fafher of respondents No. 1 to 3 has supported the claim of plaintlff in his evidence. 5. Dr. N. K. Shiikla, Sr. Advocate with Shri Sanjay K. Agrawal, Advocate 8s Shri Sudeep Agrawal, Advocate for the appellants, Shri Pramod Verma, Sr. Advocate with Shri Sanjay Shyam Agrawal, Advocate & Shri M.L. Pastore, AdvdGaf® for fhe respondent No. 1, Shri Ravish Verma, Advocate for fhe respondent No. 3, Shri Vinod Kumar Tekam, P.L. for the State/respondent No. 4 and Shri Shailendra Soni, Advocate on behalf of Shri R.K. Tiwari, Advocate for fhe respondentisfb. 5 are heard. 6. Judgment and decree of both the Courts below and record of both the Courts below perused. 7. As regard fhe nature of property held by KapUnafh is concemed, as per pleading in plaint made by respondents No. 1 to 3, their mofher & father of appeUants were brother & sister and son & daughter ofKapUnath. After death ofKapUnath, they have succeeded property as son & daughter of KapUnafh. By filing written statement, present appeUants have very speciflcally pleaded that Phekmlbai i.e. sister of Bahadurlal i.e. father of appeUants had relinquished her right over the property after obtaining Rs. 20,000/- from Bahadurlal. On accoiint of such relinqiiishment, name of Phekinlbai was deleted from Revenue Record. These pleadings clearly establishes the fact (hat at the tune of death of Kapilnath, he was only owner of property and Bahadurlal was not coparcener. Appellants had not clalmed or pleaded that Bahadurlal was coparcener along wifh KapUnath even otherwlse established and proved aforesaid facts, present appeUants have not adduced any evidence to show that during lifetune of fafher of Kapilnath, Bahadurlal bom. Property held by KapUnafh was ancestral & coparcenary property. 8. In absence of such pleadmg and evidence Lower Appellate Court has not committed any Ulegality by not accepting right of c. Bahadurlal as coparcener and not holding that suit property was not self-acqiiired property of KapUnath. Both the parties had led documentary & oral evidence, relationship is not disputed. Present appellants have proved Ex. P-1, copy of Sanshodhan Panji ot aforesaid property whereby revenue entry has been corrected which reveals that Baliadiirlal & Phekinibai were Bhwmswami of the property and Revenue Record was corrected on 8/7/1970 thereafter as per copy of Record of Right as Ex. P-2, name of Phekinibai was deleted on fhe basis of relmquishment of Phekmibai vide 22/8/1970 i.e. within 1% monfhs of such first entiy. These documents does not reveal whether Phekinibai has executed any dociiment, whefher notice was served to Phekinibai and after heartng her, Revenue Record was corrected, same was challenged in appeal by present respondent No. 1 in the year 1998 before the Sub-DMsional Officer vide Ex. P-3 in which respondent No. l has taken specific plea ttiat Phekinibai has not reltnquished her share, proclamation was issued, no notice was given to Phekinlbal and without providing opportunity of hearing, Baliadurlal has succeeded in correction of record, which is Ulegal perse. But Sub-Divisional OSicer, Bilaspi.iT has dismissed the appeal only on the ground that there is no propriety of filing appeal after 29-30 years of such correctton of Revenue Record. 10. Ex. P-3 reveals that appeal was already admitted'^fi' hearin^ but on the ground of loi^ delay, appeal has been dismissed by Revenue Authority. Limitation prescribed under the law creates bar for hearing fhe case on merits but once parties are permitted to make their submission on merits fhen appeal or petition cannot be dismissed on fhe ground of lunitation. Although, while dismissmg fhe appeal or petition on the groiind of limitation before its admission, Coi.irt or Tribunal may also consider the merits of (he case but once appeal or petition are admitted for consideration after prescribed period of limitation then same issue is not open for consideration at the tune of final decision. Ex. P-3 further reveals that Sub-Divisional Officer has not amved at a finding whether proclamation has issued, whefher notice was issued to Phekinibai, whether at ttie time of correction of record, opportiinity of hearing had been provided to Phekinibai. These all circumstances clearly reveal that alleged correction in Revenue Record was made ex-parte wifhout providuig opporturu.ly of hearing to Phektnibai. 11, Appellants are heirs of Bahadurlal and respondents No. 1, 2 & 6 are heirs of Phekinibal i.e. t>rothers & sisters; no ouster has been proved by the appeUants, these alone fact is sufficient to discard ofher submission of fhe parties and these facts are suHicient to prove that respondents No. 1 to 3 had filed suit within limltation, they are % share holder of property and entitled for partition & possession. 12. Lower Appellate Court has consciously applied its mind on all substantial issues raised in fhe appeal by appeUants even otherwise only aforesald facts relating to relinquishment of right by Phekinibai is sufRcient to decide all substantial issues ralsed in appeal by appellants before the Lower Appellate Court. 13, For the foregoing reasons, substantial question of law No. 1 is decided as positive and substantial question of law No. 2 is decided as negative. On the basis of flnding on substantial questions of law No. 1 & 2,-I do not find any substance in the second appeal, same is deserves to be dismissed and is hereby dismissed. 14. Parties shall bear cost of appeal. - 15. Advocate fees tf certified as per schediile or to fhe extent of certificate whlch ever is less. 16. Decree be drawn up accordmgly. ,s^- ^shar^ Judge