WBWM ^>'''.,'./.1'[/-'.^'^' :'f"l'i^-^>;:-"":.';'':.':?".^h" •;.]' •i'^:lsli K- ^^:^ i;-'f^ •nr: aBpnr 12UUJ1S4S 'd'i -/PS OI^Zl^^"V^ZW|^ -^^8tt^u|!]pye[p^ej^|eysri!e>|^^K^.':^ :s.iiiiiNOdsii ,l^,,^^^08Jj9/^| tegeiiy^n^^!iBi!^"luiS^ :.EMv-Raidw jQi.Q^»OfQ^<?N^^|!a^pjU!E»si9^ <i^':.;.^l/• /^'':'-' ;'l,'li'';^>^^^'.'^;,;..^-;-^ ''QtM^ •,:::^.;^'J8(.|tQUe;1 py^ ^g ^|!Msne>i SBii&^ieg j!>|o>|^|ti|^ sn$.ie/p .pese||^et)sie>^ ;S.l.NgQN€>G|S3^ :.irwiact^ t|^||5i|ii>|Zi^|ii|||^^ •"fl^ Iilii ll%lt;?i ^^i^SM^iSii. ^•^^f<S^^ HIGH COURT OF CHHATTISGARH.BILASPUR ^ Second ADpeal No.362 of 2009 APPELLANT/: (Plaintjff) Kaushal Prasad, aged 57 years, son of late Shri Rameshwar Soni, reside.nt of village Boirpara, tahsil Lormi, district Bilaspur (C.G.) Versus 1. Smt. Kokil Bai alias Kaushila Bai, aged 70 years, daughter of late Shri Rameshwar Soni, resident of village Boirpara, tehsjl Lormi, district Bilaspur (C.G.). 2. State ofChhattisgarh, through the District Collectpr, Bilaspur (C.G.). ;{Second appeal underSection 100 ofthe Code of Civil Procedure, 1908} RESPONDENTS/: (Defendants) Present: Mr. Somnath Verma, counsel for the appellant. Mr. Rahul Mishra, counsel forrespondent No.1. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent No.2. ^PELLANT/: (DefendantNo.1) AND Second Appeal No.205of 2010 Smt. Kokil Bai @ Kaushila Bai, aged about 70 years, D/o Late Rameshwar Soni, R/o Village Boirpara, Tah. Lormj, District Bilaspur (CG) RESPONDENTS/: (Plaintiff) 1. 2. Versus Kaushat Prasad, aged about57 years, S/o Rameshwar Soni, R/o Vill. Boirpara, Tah. Lormi Distt. Bilaspur (CG) State of Chhattisgarh, through the District Collector Bilaspur (CG) (DefendantNo.2) {Second appeal under Section 100 ofthe Code of Civil Procedure, 1908} Present: Mr. Rahul Mishra,counsel forthe appellant. Mr. Somnath Verma, counsel for respondent No.1. Mr. RakeshKumar Jha, Deputy Govt. Advocate for the State/ respondent No,2. Sinale Bench:Hon'ble Mr. T.P. Sharma. J m-Tf:^ ;;'•(; H.^ ;,S^^^^ ^/y'- %. '^^^y:^^i%^;^^^^?i%iSii^^^i%llt:l ^ ^-^J^ JUDGMENT (Delivered on 27th August, 2010) ^) 1. Since both the above appeals are arising out of common judgment & decree dated 14-5-2009 passed by the 1st Additional District Judge, Mungeli in Civil Appeal No.2-A/2009, they are being disposed of by this common judgment. , 2. As per pleadings of the parties, Kaushal Prasad, appellant in S.A. No.362/2009, had filed civjl suit against his sister Smt. Kokil Bai, respondent No. 1 in S.A.No.362/2009, for deGlaration of title and permanent injunction relating to lands inherited on account of the death of his father Rameshwar Soni and the lands purchased in the name of Kaushal Prasad, before Civil Judge Class-1, Mungeli vide Civil Suit N0.30-A/2007, in which he has claimed that he has purchased agricultural lands vide Exs.P-2 to P-6 from different persons, his father had purchased the property for himself vide sale deeds Exs.P-7 & P-8,,, his fatherwas also in possession of the property and partition took place between respondent No.1 & her father i.e. father of theappellant also, durjng thelife time of his father. Afterthe death offather ofthe appellant & respondent No.1, respondent No.1 has executed an agreement (Ex.P- 1)on 26-6-81 inwhichshe had acknowledged that on account of partition with her father, she has relinquished the lands bearing Khasra Nos.73, 93, 94 &636 area 0.085 hectare. 0.555 hectare, 0.235 hectare & 0.081hectare, respectively, totai 0.956 hectare. 3; RespondentNo.1 Smt. Kokil Bai has denied the allegation made in the plaint and has specifically pleaded that she has not executed any agreement and has notrelinqujshed any land in favour oftheappellant vide agreement Ex.P-1, lands purchased vide Exs.P-2 to P-6 in the name of the appellant had been purchased by her father jn the name of the appellant and after the death of her father, the appellant & respondent No.1 both succeeded the property left by their father and they are having equal share over the property. 4. After affording opportunity of hearing to the parties, Civil Judge Class-1, Mungelj vide its judgment & decree dated 18-11-2008 passed in Civil Suit N0.30-A/2007, has decreed the suit tothe extent of Khasra No. 104 area 0.50 acre and Khasra No.96 areaO.30 acre, purchased in thename of the appellant vide Exs.P-5 & P-6 and also arrived at a finding that this •\ •-'^ 'i '.^^ ..^0 3; . ! . ' • : '.'-"-. property was owned byjoint family, and therefore, the appeilant & respondentNo.1 are equally entitled forshare over the property. 5. Judgment & decreeof the trial Court was challenged before the first appellate Court and videjudgment & decree dated 14-5-2009 passed in Civil Appeal No,2-A/2009, 1st Additional District Judge, Mungeli has partly allowed the appeal and decreed the suit filed on behaif of the appellant, exclusive owner of the prpperty purchased vide sale deeds Exs.P-2 to P-6, and has also declared 50% share over the property shown in Exs.P-7 & P-8 purchased by father of the appellant & respondentNo.1. 6. Mr. Somnath Verma, learned counsel appearing on behalf of Kaushal "* Prasad, vehemently argued that the Court below has not considered the fact that Kaushal Prasad has succeeded in proving conscious execution of Ex.P-1 by Smt. Kokil Bai, who had acknowledged that on aGcount of the property received on partition from her father, she has relinquished the title-in-interest over the lands shown in Ex.P-1, and thereby committed illegality. Substantial question of law for the decision of Second Appeal No.362/2009 would be that whether the Court below has committed illegality by not acceptjng conscious exeGution of Ex.P-1 by' respondent No.1 Smt. Kokil Bai. 7. Inter alia, by filing S.A.No.205/2010 on behalf of Smt. Kokil Bai, Mr. Rahul Mishra, learned counsel appearing on behalf pf Smt. Kokil Bai, vehemently argued that at the time of purchase of property vide Exs.P-2 to P-4, age of Kaushal Prasad was orily four years, he was not having source of income and his father has purchased the property jn his name, therefQre, the Court below has committed illegality by declaring Kaushal Prasad as exclusiveowner of the property purchased vide sale deeds Exs.P-2 to P-4. Substantial question of law fordetermination of Second, , Appeal No.205/2010 would be that whether the Court below has CQmmitted any illegality by declaring Kaushal Prasad as exclusive owner ofthe property purchased in his name when he was minor. 8. 1 have heard learned counsel forthe parties and perused the impugned judgment & decree as also the record. 1 have also examined oral & documehtary evidence adduced on behalf of the parties. 9. In the present case, as perpleadings and evidence of thepartjes, certain lands were purchased vide Exs.P-2 to P-6 in the name of Kaushal .^ :-%^^\- 'l •^'.-^- 4 ' : -:^^^^^^^^^^ Prasad and certain lands were purchased vide Exs.P-7 & P-8 in the name of Kaushal Prasad & Smt. Kokil Bai. Kaushal Prasad has examinedwitnessesinorderto prove conscious execution of Ex.P-1, the alleged agreement dated 26-6-81. Ex.P-lcontains thumb impression of Smt. Kokil Bai. Smt. Kokil Bai has not acted upon the alleged,, , agreement, interalia, hername has been recorded in revenue record at her instance, after the death of her father. After considering the evidence adduced on behalf of Kaushal Prasad, the Court below has arrived at a finding that Kaushal Prasad has failed to prove conscious execution of Ex.P-1 on behalf of illiterate lady Smt.Kokil Bai, evenshe has not acted upon Ex.P-1 and the fower appellate Court has also arrived at a finding that Kaushal Prasad is owner of the lands purchased in his name, though hewas minor. Smt. Kokil Bai has not challenged the sale deed by filing any suit against Kaushal Prasad relating to the aforesaid lands. Admittedly, land was purchased in the name of Kaushal' Prasad and he is in possession of the land, In absence of other contraclictory evidence, the Court below has rightly held that Kaushal Prasad is owner of the land purchased in his name, Kaushal Prasad has failed to prove conscious execution of Ex.P-1, the alleged agreement and has rightly declared interest-in-share upon the property of both son & daughter i.e. Kaushal Prasad & Smt. Kokil Bai. 10. On close scrutiny of evidence, l do nbt find any illegality in the judgment & decree impugned of the lower appellate Court or any substantial question of law for decision of the second appeals. Consequently, both, , the appeals are liableto be dismissed and they are hereby dismjssed, in limine. Parties shall bear their costs. 11. Advocate fees as per schedule. 12. Decree be drawn accordingly. Sd/- T.P. Sharma Judge Soma 27-8-2010