7/”, W N THE HIGH COURT OF HHAmGSARH AT BILASPUR S‘ngh; Bench \ Appeilant ‘ ( s Naval Sal S/o Dllu Ra]war, 58 years Chotu Ram S/o Dllu Rawar, J 55 years 3 1. Kanval al S Defendant) \P S/o Dllu RaJwar, 6O year ‘ I. O: . . .. ‘ ... ‘. \/o Drlu RaJwa 51 years All r/o VIII Kaskela, P S PratappUr Distt. Sarguja Teh. Surajpur, (C.G.) _ ERSUS ’V éi/gw Respondent Plaintiffs Smt. Basanti Wd/o Late Bachanram, 55'years t r/o Vill. Kaskela, P.S. Pratappur eh. Surajpur, Distt. Sarguja K Smt. Manmati, 3O years / D/o Late Bachanram, W/o Mahendra Ram r/o at present viii. & Post. Arokha Teh Surajpur, Distt Sarguja y—3/ Smt Savrta 28 years D/o Late Bachanram, W/o Chltaram r/o at present vill. Parsapara Post. Kalua, Teh. Surajpur Drstt SarguJa q/ Smt Indra Kunvar, 26 years D/o Late Bachanram, W/o Rambllas 7 r/o at pres'ent vill. Salka(Aghina) Teh. Surajpur, Distt. Sarguja Smt. Urmila, 21 years D/o Ram Bachan, W/o Premlal r/o at present vrll Khopa Post Bungudl — Teh Surajpur, Dlstt Sargu1a 3/ I R Mygtmw. Agar 3a! £/c. Lats Naval. Laai. agea about 26 gears. Av9~u‘qm—3a. slat. audhanau mv‘ ,Wc. bath: warm 1am. 55 wars. 3b. Geetai grasaé. $14. Lam main Rm. 3E years, Secand Appaa! N0. 245 of 29% Kama! Sai and athers Versus Smt. Basanti and others. JliaGMENT Single BEnch: H0n‘bl& $hri Justice Pmshan‘t Kumar Misha Fest gar Ié 434mm. Sd/- Prashant kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BRASPUR 1 Versus RESPONDENTS Smt. Basanii and athers. ,3 Shri Prafull Bharat, counsei fer the appeklants. Shri Sushil D'ubey, counse! for the respondents No. 1 to 5. Shri Sanieev Kumar Agrawal, Panel Lawye! inf the Statefies: Ne.5. SECOND APPEAL UNDER SECTION 1E0 9F THE SDDE 9F £NIL PROCEDURE JUDGMENT 1 t é ~,o4.2o1o) The instant second appea! undel: Seation mo cf the SEC. hae been preferred by the defendante in the suii. The tria! €ourt deereed me suit preferred by the plaintifrsirespendente No. 1 tn S fer dectererien 9f their title and permanent injunctien on piaint echeduie ‘C’ tends. the firet appettate Cauri has affirmed the judgment and decree passed by the trial Court. {2) The case 0f the piaintiffs betere the triat Ceutt was that iate Diiu ) Rajwar had acquired $391 hectares at tend durthg his tite time fer which a setttement patta was issued in his name which is deeeribed in eteint scheduie ‘A’. Ditu Raiwar affected yartiiion between his tive sees in the year 1960 and att the five eons are in separate eutth'ating poeeeesien cf their respeetive shares and thereafter the heidings were else separated. he eaid partition Bachanram was allotted the plaint sehedule ‘B’ roperty. After eartitiorr Bachanram aceuired 4.529 hectaree et \ APPELLANTS / t p agg'icuitural iand from his awn incame which i5 mentionec: in sshedule ‘C’ with the pta‘mt, however me defendants N0. 1 to 4 by taking benefit isf me iliiteracy and innocent of plaintiff No.1 got h‘er mnsent te {ecord thei: names amng with the ptaintiff No.1 in the s¢hEdule ‘C’ praperty by mumion No. 32 dated 23'“ March, i993. However, merew by such mutation they do nut enquire any We, and sinse defendants: No. 4, t0 4 are trying t0 interfere in the plaintiffs pessession the present suit has. been filed. (3) The defendants No. 1 to 4, tn their wrttten statement stated that the ptaintiff Nefi is net the‘iegatly married wife at Bachanram as she was married to ene Shiyaram and thereatter she iived'with ene Utiram 9f vitiage Nevra and then Bachanram had breught the aiaintiff Next tn resiee with him witheut their being any marriage. Awarding to the defendante the piaintiff No. 1 has nn right, title or interest in the praperty ef her husband and also that there was no partition between brothere‘ i‘e. between tive sons of Diiuram in the year 19a) as stated by the aieintiffs and that the iand in schedule ‘C‘ was purohased by iate Sachanrarn from the income at the. joint tamiiy property and as such the scheduie ‘C’ property isioint tarniiy property. 7, {4) The teamed trial Ceurt, an the basis of pieadings made by the parties, framed material issues No. 1,2 and 3 for adjudication of the suit and on the basis of documentary as welt as orat evidence oonotuded that the iands covered in sohedute ‘C’ was purchased by Baohanram from his income and not as Karts oi the joint family or from the income of the joint famiiy. The triai Court aiso heid that mere mutation of theinamee of 3‘ O «'5— defendants No. 1 ta 4 in $chedule ‘C' iands daes mt sunfer any we an the defendants. It was aisu found that all the five mothers werewsiéing separateiy, therefare, the plaintiffs case that lands in schedule ‘C’ was the self acquired preperty 0f Bacha'nram appears/to he convincing. The ma! 'Court also held mat on the basis of evidence available an resort! the ' plaintlff No. 1 was the legally married wile of Bachanram and elaintifls No. 2 la 5 are their daughters. ll was also recdrded by lhe trial Caurt that since all the five brothers were already separated and the lands ef schedule ‘C‘ was purchased by Bachanram alone in his name after the separation, inclusion at the name of defendants No. t te 4 withotit any registered deed at transfer is not legal because sueh transier at lands fer the value at more than RslGQi- cannot he made exeept in aceerdance with the provisinns eontained in the Registration Act. (5) The tirst appellate Court, by its judgment and decree dated 2t -Q4— 2006 which is impugned in this second appeal has confirmed all the findings recorded by the trial Court. The appellate Sourt was also ot the View that the appellantsldefendants have failed to prove that perehase er lands in schedule ‘C’ in the name of Baohanram by registered sale—deed dated 23-Odi 9?2 was made from the income oi ioint family preperty or that the name of Bachanram was recorded being the Karta of the ioint Hindu Family. The appellate Court also round that previous partition and separation of five brothers have been proved by the plaintiffs. finding regarding'the plaintiff No.1 being the legally married wife of hachanram has also been oontirmed by the first appellate Court. / \~ ex v\_. {6) The instant $econd appea} has been admitted by fonnuiating the ' foitowing substantial questions oi taw :- ’1. Whether the vaiuabk decumentaw ew‘dence med as Exs, D—7 and D40 have been ignersad by the Cam‘s belaw and a wreng ending in fe!at:'0n ta acquisitien 9f the property af Schedule-C has eeen {ecamed ? 2. Whether the Courts belew erred in £aw in he!d£ng ihet x 7,; the praperty of Schedule-C at“ the plaint was the seif acquired prepedy 9f the deceaseaLBachanram i?” (7) The substantial questions of iaw No.1 has been iramed £9 the effect that the Cuurts beiuw have ignored meteriai documentary evidence EXDI'? and ExD/w and thus the finding :egarding nature ei seheduie ‘C‘ iend has been arriveti at by ignming the evidence. Ex. DI? is an undated appiieation'presented befere the Aseisient i Bandobast Adhikari beating me thumb impressien 9i Baehenram mentioning therein that the ether four breiheis have aise get their ehere > and their names may he ineiuded. Ex.D110 is ihe eopy ei :eeerei e? Eights containing the name of ail the five brotheis on the basis of ExDE’. According ta the appeliant these twe decuments goes tn substantiate the case 0f the deiendant that seheduie ‘C’ lend was ioint tamiiy preperty ‘ because in ExDi? Baehanram had admitted that apart horn him ether fnur brothers have got share in seheduie ‘0’ lands and thus the deciaration of absetute title of the piaintifts on scheduie ‘C’eiand is perverse. On the other hand eeunsei tar the tespundents has submitted that Bachanram never usett to mark his thumb impressian and that‘he heed tn 3 @ -5_ make signatures, therefare ExDl? which is an undated document is suspmous. {9) On perusa! 0f the record, it would appeas that EX.P!10, the copy at? Bhu—Adhikar and Rin Pustika bears the mgna’ture of Bachanram. Moreover bath the Courts bebw have concunentty iecorded fmding that there was a previoue partEtion between the fwe brathers. The ma! Ceurt has diseussed in detaii by referring to various eare-deede med by the parties to how that Bachanram an the one hand and the ether four brothers on rhe ether hand have purehaeed variaus pieces of §and én their own name after their eeparatinn as they were residing eeparateiy. Thee ' aii the five brothers have been purehasing tends in their own name after partition. Had it been a ease that after the partitien between the five brothers they again formed a reunion and therefere formed a taint tarniiy, ail the properties purchased in the names of different brothers woutd have been purchased in the name of Karta of the famiiy i.e. Eachanram however the degree et proof required to prove are-union is more stringent when once it is found that there has been a partition and eeeeranoe of goint status amongst the members oi ioint Hindu family. Havin purchased the properties in their own name after partition! the defendants No. 1 to 4 had not been abie to prove that there was a re—union between five brothers. Moreover it is not a case whether the defendants from the very beginning have been asserting reunion between the five brothers. When the averrnents made in the written statement is examined this Court finds that there is ahsoiuteiy no pleading of re—union. instead the plea was that there was no partition at aii between the five brothers, however when once the Courts beiow have found that‘there was a @ partitian between the five brather's as they Were :esiding separateiy and the revenue records were a!se separated. it wa$ tequired 9f me defendants to have come up with a specifkcé plea 01 ie~union, which may have faHed e§ther in their p!eading er in their evideme. The defendants i appenants, therefore cannot be atlowed to set up a new case a! {e—unkm on the basis of a solitary documents Ex.E)/7 more en when ExrQ/7 itee!f appears te be euspieieue because it bears the thumb impreeeien ef Bachanram whereas in the Shtr-Adhikar Puehka {ExPI‘lO} eigneture ef Bachanram is avaiiabie. Moreover the defendanteiappellante heee not made any efforts in the trial Court te prove that the atteged thumb impression of Baehanram in Ex.D!? ‘ is in fact his eriginet thumb impression by examining the fingers prints expert” {10) The document ExDltO is the record of rights in which name of at! five brothers were recorded in echeduie ‘C’ iande on the basis of the \Li appiication Ex.D/?. Thus, Ex. DltO is not independent ot 5&9]? When once EXDE’ itseit appears to be a suspicious dooument and it wouid not be safe to disturb the concurrent findings recorded by the two Conrts tieiow on the basis of one solitary document, Ex.¥)110 also is not such a materiai piece of document which shat! clinch the issue in favour of the appellantsidefendants. (it) Once the effect of non-consideration of Exit)? and Exam) has been decided against the defendantslappeiiants while answering substantiai questions of iaw No.1 above, the second substantial question of aw is also covered in the said discussion inasmuch as the finding as to the nature of property is pure finding of fact which is notxfound to he ~7_ pervenae. Thaw §s abundance a-f evidence both dwumentary and ara! $9 prove that the fwe brothers were separate by metea and bgunds‘ The finding regarding nature 0f scheduie ‘8’ iands is in accerdanee with arm on correct appreciatiun 0f evidense an recard. The seeond auestinn ef taw is thus also decided against the appeiianis ! defendants. {12) in View at the above, answer in hath the subetantiai questiahe at law are against the defendants, the present ‘secend appeat thee teiis and is hereby dismissed. The judgment end deeree under. shattenge is contirmed. (1 3) Beth the parties shat! bear their even costs. {‘t 4) A decree be drawn up accordingty. ‘iJ i i Sd/- g Prashant kumar Mishra i Judge