z— rt ,!f IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No^li l^ p 72006 APPELLANT •^rPlaintiff 0, ^ y RESPONDENTS ^' Defendant w. ^ ^Ramratan, S/o Buddhu aged about 52, Caste T^li Occupation Service R/o Village Kalayanpur Tah. Surajpur, Distt. Sarguja VERSUS Ram Lakhan, S/o Buddhu aged about 57 years 2. Rajendra Prasad S/o Buddhu aged about 47 years 3. Chaitram, S/o Buddhu ^" aged about 45 years All R/o R/o Village Kalayanp.ur Tah. Surajpur, Distt. Surguja 4. State of Chhattisgarh (formal) Through - The Collector Distt. Sarguja (C.G.) S ECQN D APPEAL U/S 100 OF C.P.C. XI-HC-78 CT^T^T^TW cTSTF3TT^T$h^icb ,A !— *ii+inis»iHich SwT^ll^lcn^, ^Tfl<lll<o, fs|^l^^< • • ^* • •'• • •"• • »•••t**•••^[200^ STT^T ^ra^T (^cii^<q^) ^cTTW^T^n^T 25.09.2006 Shri D.R. Sharma, Sear^ed Sr. Advocate with Ms. Anita Singh, counsel forthe appellanVplainti|¥. Heard on admission. 2. This second appea! u/4 directed agalnst the impugn€|d passed In Civil Appeal No. 55|- (FTC), Surjapur, Distt-Sarguja appeiianVplaintiff against the passed by Civil Judge, CIa^s- djsmissing the suit of the piajntif 3. Learned counsei for the in question \vas effected thrice| the parties, in the year 1971 an| Budhu.when jt vv'as again divic| year 1996 by the Settiement by the Settiement Offlcer appejlant/pjaintiff on the basis the Courts below have wrong!y| <=bi^T<n<ifl-i wy^ff ^* te^t ^r^K ^3Tf^T3TI^T > 100 of the Code of Civii Procedure is judgment and decree dated 6.5.2006 -A/05 by Second Additjonai District Judge [C.G.) whereby the appeai preferred by the Ijudgment and decree dated 31.12.2004 Surajpur in Civil Suit No. 29-A/97 ff, has been affirmed. lappeilant submjts that partition ofthe iand s|. First, during iifetjme of Budhu, father of an^l secondly, on 24.7.1987 after the death of vicjed into four equai shares and lastly in the Oficer. !t is argued that the partition effected Iwas done behind the back of the |3f his forged signature and therefore, both |he!d that the partition has be:en proved and XI-HC-78 3TI^T^T^ cTSTF 3TI^T sh^icb t* +ii<4(<ii aiHicti 3^T ^TT^T^R, ^TJI^-'KO, f^dl<iy s.^. S// ^200^ 3TT^?T TT5RR1 (^qi^q^&T) ^RTTW ^rf?(T ^TI^T thus, fojlowing substantiai que| second appeal; 1. "Whether partitior^ share holderofth^ 2. 'When, concern t^ made, whether a| partltion in respe^ holder?" 4. ! have heard learned co| perused the records of both judgment passed bv the Court ^ 5. The undisputed, facts appeHanVpiaintiff and the resp^ the property in question is the piaint arose to the appellant his share of the p!ot and the month of December 1996, the suit property is ancestrai pn share and separate possession. cbi^f<n41Ti ^i^^T^te^t^^K ^3Tf^T3TI^?T riions of iaw arise for adjudication of this can be made without presence of ^ property?" a property, previously partltion was ^ain order may be passed for new t of same property and same share s|jnseS for the appeiianVpIaintJff and I have the Courts beiow as aiso the impugned teiow. in the present matter are that the ^ndents/defendants are rea! brothers and ance^tra! property. Cause of action as given in il/piaintiff when he staited construction over re^pondents/defendants objected to it in the wh^reupon the above suit for dedaration that t)per1y and he be deciared entitled for 1/4 has been fiied. XI-HC-78 3TI^T^TR4i4) 'cTSTT 3TR?T ^TRF ^ V- +11*1^1 S»»NI«»» 3^ ^|qi<n^, ^Tn<M^<o, ^crtKriy ^S;^^3//^ ^ 200jS 3T^T q^9? (^i^^l^) ^cTTW^fgcTW^T 6. . The respondent/defend^ stated that the property in c| holders during the !ife time oftll was again divided into four shs Patwari and since then the1 Gbl<Mt<n41'i ^l^crTl ^te^iRl^K ^^rf^T3TT^?T nts denied the averments of the piaint and uestion was divided amongst the share icir father Budhu, at that tlme it was divided into five shares and subseque|itly, after the death of Budhu, the property |res in the year 1971 wjth the help of Haika ^ are peacefully in possession of their respective shares. In the ye^r 1994 a joint application was preferred before the Settiement ComrTtiissioner for recording their names with respect to their respective shs^res as till then revenue papers were not corrected. !n the said proceed|ings ali the four brothers were present and the Settiement Officer with th accordingiy, the revenue appeilant/piaintiff has suppress eir consent prepared partition memo and papers were reconstructed and the ed this fact in his plaint. 7. On the basis of pieaditigs of the respective parties issues were framed by the trial Court and t^e suit was dismissed by recording a finding interalia that the piaintiff is no|: entitled for 1/4th share over the propei-ty described in scheduie "A'\ he| is not entitled to recover the possession after effecting partition over tl^e 1/4 share of the suit property and the property in question is anc^stra! property and the same has been ^^" B/ K/ !?;/ XI-HC-78 3TT^T ^F)T f^TNT cT^TT3nc!^T$b^[ch ^ B —••' 'A-' ^' JB^ /-YNt).^ *ii*iMi a»Hict> 3^T <^l^l<n^, ^Tfl<1JI<o, (^<rt(<riy • • •"^»•••••••• • ••••••••^200^ 3TI^?T^T3ra7( !^cTTW^f?cTW^T partitioned between the plaintifT and defendants No. 1 to 3 during the lifetime of their father. 8. The appeal preferred by| with identica! finding. 9. Both the Courts below after record have recorded a concul was partitioned betA/een the Courts and even prior to that p^ shares between the parties wit| father Budhu and after his deal with four equa! shares. The above| respective parties as aiso cn t^ Court statement which does nd question of Jaw as proposed by| appeal. 10. in the result, the appeai| dismissed at the admission stag cbi^fd41'i ^iH<nT^tec^'<Ri<^i< ^3:ri^T3T^?T the appeiiant/plaintiff was also dismissed considering the evidence avaiiable on 1-rent finding of fact that the suit property F|arties with their consent by the revenue [irtition there was a partition into five equal their consent during theiifetime of their |h the property was again partitioned into finding is based on the pieadings of the |e admission of the piaintiff himseif in his )|t cail for any interference. No substantiai p:he appeiiant arises for adjudication ofthis being devoid of substance is iiabie to be itse!f and it is accordingiy dismissed. Sd/- Dhirendra Mishra Judge