U'al \; Ct" ^- IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Snflfo Bencfr APPELLANTS (Respondent No. 1) (Respondent No. 1A) (RespondentNoJB) ^\\ L 2. p^»8CT»a A^"^" ^—•:"-""" -^"'^ (Respondent No. 1 C) (Respondent No. 1D) (Respondent No. 1E) RESPONDENTS (Appellant No. i) (Appellant No. ii) (Appellant No. iii) .i-'' (Appellant No. iv) 4. 5. ^ 6. Versus ^" 2. '3. ,.4. S.A.No...\^.../2011 Ransi, aged about 70 years, W/o Late Boga. Balram , aged about 42 years S/o Late Boga. Aso , aged about 40 years, S/o Late Boga. Appellants No. 1 to 3 R/o Village - Deurgaon, Tehsil - Jagadalpur, District- Bastar (C.G.) Ramo, aged about 38 Years, W/o Padam R7o Chhote Devada, Thothapara, Tehsil Jagadalpur, District - Bastar (C.G.) Shanti, aged about 36 Years, W/o Mahadeo, R7o Village - Potanar, Guchagudapara, Tehsil Jagadalpur, District- Bastar, (C.G.). Kani, aged about 32 Years, W/o Guddu R/o Ghatkawali, Majhipara, Tehsil Jagadalpur, District-Bastar(C.G.) Somaru , aged about 60 years S/o Jhitaru. Budaru , aged about, 40 years, S/o Somaru. Samadu, aged, about 33 years, S/o Somam. Laxman , aged about 25 years S/o Somaru. -i>- ('Appellant No. iv ,' wrongly mentioned ', She is respondent No^v)_ '. (Appellant No. 2) 5.^: Kumari Jamavati, Aged about 20yearsD/o Somaru. (Respondent No.2A) (Respondent No.2B) (Respondent No.3A) (RespondentNo. 3B) (Respondent No.3C) ^- ^'J-: ^" Ratani, aged about 75 Years W/o Loku, Occupation Agriculture. All residents of Village - Deurgaon, Tehsil J.agadalpur, District - Bastar (C. G.) Bhagatu, Aged about 21years S/o Libaru Muriya. Budha Ram aged about 19 Years, S/o Libam Muriya. Both residents of village - Tikara Dhanora, Tehsil Jagadalpur, District - Bastar (C.G.) Smt Malti, Aged about 70 Years Wd/o Late Mahaswer. Satya Narain , aged about 55 Years, S/o late Maheshwar. Ramprasad, aged about 35 Years, S/o Late Mahaswer. Respondent No. 9 to 11 R/o village - Deurgaon, Tehsil Tokapal, District - Bastar (C.G.) SECOND APPEAL UNDER SECTION 10Q_QFTIffi CODE OF CIVIL PROCEDURE 1908 ^. 11. /—s HIGH COURT OF CHHArTISGARH AT BILASPUR Sinate Bench: Hon'ble Shri Justice Prashant Kinnar Mishra Second Appeal No.125 of 2011 Ransi and others. Versus Somaru and others. O R DE R P(sLforA°-07-2011 sd/- -r Prashant Kumar Mishra Judge fS .07-2011 ^- 5g^° ^% 1 ^»^y '~~^^^^'' HIGH COURT OF CHHATTISGARH.BILASPUR SINGLEBENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J. S.A.NO. 125 of 2011 APPELLANTS Ransi and 6thers. Versus RESPONDENTS Somaru and others. Shrt Uttam Pandey, counsel for the appellants. ORDER (-!-(?/07/2011) This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the defendants who are the legal heirs of original defendant No.1 Boga. The legal heirs of original clefendant No.2 Lakhmi and the original defendant No.3 Maheshwar have not preferred any appeal to challenge the judgment and dewee passed by ttie flrst Appellate Court. The suit was fited by original plaintifls No.1 Sula and No.2 Ratni for declaraBon crf title and possession as also for mesne profit. The suit was dismissed by fte trial Court, however the first appellate Court allowed plaintiffe appeal and as a consequence their su'rt stands partly decreed in so far as it relates to declaration and possesston. (2) Plaintiffe case, as stated in the plaint was that the said land was owned by Pandu and Chamar Moriya. They had four sons namely Konda, Donda, Paklu and Siahangu. Defendant No.1 Boga was Uie son of Konda, whereas defendant No.2 Lakhmi was the daughter of Donda's son, Milku and defendant No.3 Maheshwar was ttie son of Donda's ! daughter^PakaL The plaintiffs are the daughters of Donda'ssecond son Chamru. According to the plaintiffs the lands covered in Schedule 'B' with 1\ Fthe plaint was in the name of Donda at the time of his dea . In 1969 the f-V i '^-^ ^^^-•^ ^ ,* >sIB ftsl :i ;:i:;i _ /5 land was recorded in the name of Bitayak Wd/o Chamru and Milku son of Donda and at the time of death of Donda his tvw rther sons namely Mahadev and Chamru were already dead. Aboutsix years prior to the date offilinfl of suit Bitayak Wd/o Chamru di6d, however defendant No.1 Boga fraudulently got recorded his name without the knowledge and consent of the plaintiffs. Milku also died in the year 1989 and the name of his widow Budhri was recordedjn his place. (3) It was further averred that Konda was living separately and Donda was living at village Dewoorgaon. Konda's three sons namely Tati @ Mani, Lachhindar and Bhora were residing joinUywith Konda. Lachhindar died issueless and Tati @ Mani and Bhora are residing at wllage Kohakapal where they have got their separate agricultural land. Bhora's four sons namely M'rthu, Ayatu, Boga (defendant ^k>.1) andSonu have no right, title or interest in the suit land. It is furttier averred that Donda settled her daughter Pakai by gwing 5.55 acres of land bearingKhasra No. 82/2. The said Pakai and her husband Masu have died; they had ttiree sons namely Maheshwar (defendant No.3), Rameshwar and Tati (dead) and that in the year 1989 and 1%0 the plaintiffe culUvated fte land, however the crops were harvested by defendant No.1, even though the said defendant No. 1 has no right, title or interestinthesuitproperty. (4) The defendant No.1 fited bis common stetement and pleaded that the lands covered in the Schedule 'A' was recorded in the name of Pandu ^f S/o Chamar Muriya in the Misal Bandobasta of 1913-14. His four sons were residing jointly and this land was treated as joint family property, however as per the rules/custom prevailing in the erstwhile Bastar State the revenue records contained name of any one member of the family and it is thus the name of Donda S/o Pandu was recorded in the revenue krecord after death of Pandu S/o Chamar Muriya, however, all the brothers /"'tf-^h. f .^'.' "i ~'s of Donda were cultivating the suit land. Defendant No.Ts father Bhora was cultivating the land during the life time of his father Konda and thus name of Boga was recorded in the year 1982 and after death of Milku S/o Donda name of his widow Budri was recorded in the year1989. (5) Thus, it is ttie stand of defendant No.1 that his father Bhora was cultivating the land and the recording the nameof Boga in the year 1982 is absolutely legal which was not challenged by the plaintiffe within time, however, this defendant adm'rts in para 10 of the written statementthat recording of the name of Budri Wd/o Milku in the year 1989 was legal. (6) The trial Court dismissed the suit after holding Uiat the suit land does not exclusively belongs to the plaintiffe, however, the suit was found to be wiUiin limitation. (7) The first Appellate Court allowed the appeal preferred by the plaintiffs and thereafter decreed the suit. (8) Learned counsel for the appellant has argued that the land initially belong to common ancestor Pandu, therefore, all the legat heirs of Pandu would succeed to the property. Refemng to the paragraph 2 fiii) Section II of Revenue Circular No. 5 of Bastar State Revenue Manual, 1931 learned counset for the appellant has argued that the recordlng of the name of Donda or his son MilRu or Budri Wd/o Mtlku is <rf no consequence as under the said Revenue Circular of Bastar State it was •f"~ the practice that the land was used to be recorded in the name of any one member of the family. (9) Leamed first Appellate Court has recorded a flnding that name of Donda was recorded after deatti of Pandu and since Donda's name came to be recorded from the year 1932-33, Pandu mu^ have died prior to this year, however, strangely name of Boga S/o Bhora S/o Konda (defendant T •^ l"'««>,fc lftft%l. ^' ^ IffiU IRIi! 'liS :!W ili! B wa '&ff fc'^ Bte. wws ws^ ) '4- No.1) came to be recorded alt of a sudden after 50 years i.e. in the year 1982 and therewas no immediate happening or reason for recordingttie nameofBoga. (10) It has also been found by Uie first Appellate Court at Donda died some time in the year 1^7 and after his cleath name of his son Milkii and Bitayak (widow of Donda's anotherson Chamru) was recorded which is apparent from Ex.P/8 and this state of revenue entry continuing till '{982. (11) In the Namantaran Panji Ex. PI9 it is mentioned that name of Bofla is recorded on account of death <rf his Aunty ^habhi) Bitayak. If this was the reason and Boga succeeded to the property after deatt of Bitayak, name of Boga's other brothers namely Mithu, Ayafct and Sonu shoutd also have been recorded and similariy ifthetand betong to Pandu then names of all the four sons of Pandu or their legat heirs should have been recorded in 1932^3 or in 1967 (when Donda died) or in 1982 whw name of Boga was recorded. (12) Wrth regard to the argument made on the basis of Revenue Circular of Bastar State it is to be seen that the said cireular is part of rules prescribing the duties of Patwari's in Bastar State and it provides that Khasra number shall ordinarily be recorded in the name of only one person (the head of joint family) and not jointiy. ft ftirtier provides that partition definitely made in ~a non-aboriginal (amily, unless made by a regular Caste Panchayat, shall not be recorded in th®Khasra but the cultivator, if any, may be shown in the remarks column that the rent paid by him to the head of the family should alone will remain recorded as a 1 ryot^ (13) From the above provision contained in the circular it wouM appear that name of ttie head of frie family was to be recorded however, in the •V -y /I -s present case Donda was not the head of the family in relation to the four sons of Pandu. The record contains revenue entries ofvillage Kohakapat contained in Misal Bandoba^ of 1932-33 in which name crf Konda the predecessor in interest of defendant No.1 Kas been recorded. If the arguments raised by the appellant that name of Donda wasrecorded in ttie suit land in the Misal Bandobast of 1932-33 in spite ofttie fact that he was not the eldest son but was younger to Konda because Konda was not afive in that year is accepted then name of the legal heirs of Konda should have been recorded in Ex.P/4 which is the record of viltage Kohakapat of the year 1932-33. Thus the plaintifls case that thesutt land was the self acquired property of Donda appears to be highly probable in the absence of any other cogent evidence in rebuttal. (14) It is atso to be seen that the legal heirs of original defendant No.2 Lakhmi and defendant No. 3 Maheshwar have not preferred any appeat against the impugned judgment and decree. (15) The entire case is based on appreciation of evklence led by the parties and the entries in revenue records. The finding recorded by Uie first Appellate Court that ttie suit land was seff acquired property of Donda is pure finding of fact. This Court has gone through the evidence availabte ori the record and the finding recorded by the flrst Appellate Court does not appear to be perverse. (16) No substaritial que^ion of law arises for determination in tttis appeal, which fails and is hereby dismissed. — — - prashant Kumar Mishra Judge ^