HIGH COURT OF CHHATTISGARH AT BILASPUR Secoad Appeal Np.^46/2011 ADpellant Plaintiff Respoadents Defandaats Versus 1. 2. 3. 4. Jairam aged about 55 years, S/o Alamsai By occupationa Agric'dlturist, R/o Village Tanjara Tahsil Sonhat, Distt. Koriya S/o Occupation about 27 5. 6. 7. 8. Shnram. aged about 38 yeais, S/o Late Alafasai, By Occupation. Agricultrist Shivraai aged about 57 years, Late Alaiusai, By Agricultrist Maliendra Knmar aged .years, S/o Ranivilas Ramvilas aged about 48 years, S/o Mohar Yadav Gaudian Late Lal Yadv, By Occupation, Agriculturist R 1 to 4 R/o Village Taajara, Tahsil Sonhat, Distt. Koriya. Snit. Kailasbo aged about 60 years, D/o Late Alainsai, W/o^ Ratansai, Paaika, R/o VUlage Amritdhara, Tahsfl Sonhat, Distt. Koriya Sint. Phool Kuwar, aged about 50 years, D/o late Alamsai, W/o Narbad Pacuka, R/o ViBage Mahuvapara, Tahsil Sonhat, Distt. Konya Smt. !ndrakuwar aged about 42 years, D/o Alamsai W/o Shivprasad Pazuka, R/o Katghodi, TahsU Sonhat, Distt. Koriya State of Chliattisgarh through CoUector Koriya. SECOND APPEAL UNDER SECTION 100 OF CODE OF CIVIL PRQ^EDURE, 1908. (SB :Hon'ble Mr. T.P.Sharma, J.l Present:- Shri Parag Kotecha, Advocate for the appeUarit. ShriSaujeev Kumar Agrawal, P.L. forftie State/respondent No. 8. Respondents No. 1 to 7.not noticed. "f' OR&L- ORDER (Passed on 03/08/2011) By this second appeal under Section 100 of the Code of Civil Procedure, 1908 (in sh©rt'tfae Code') against the judgiaent and decree dated 15/4/201l passed by First Additional District Judge, Maaendragarh at -z Baikunttipur Distnet Koriya [C.G.) in civil appeal No. 06A/2010 affirming the judgment aad decree of dismissal of civfl suit dated 17/12/2009 (decree dated 1/1/2010) passed by 2nd CivitJydge Class-l, Baikunfhpur ill civil suit No. 03A/2005 whereby suit filed on behalf of fhe appeBant/plaiD.tiff for partition of aacestral laad aad declaratioa of sale deed executed by respondents No. 1 & 2 in favour of respondents No. 3 & 4 as auU aud void and possession has been dfaniissed. Sbri Parag Kotecha, Advocate for fhe appeUaat and Shri SaDJeev Kumar Agrawal, P.L. for fbe State/respondent No. 8 are heard. Learaed couusel for fhe appellant vehemently argued that originally )ioperty was owned by fafher of Alanisai & Amarsai naniely Bfliari Panika who died ia fhe state ofjointoess fhereafter same was succeeded by his two sons. Aiaarsai was issueless and property was succeeded by Alatn.sai, father of appellaat & respondents No. 1 & 2. No partition was affected between appellant &, respondents No. 1 & 2 stiU fhey are residing in fhe state ofjointness and fhey are jointly cultiyatiag the fields but bofh. fhe Courts below have not considered the aforesaid pleading and evidence offhe appeUant and thereby coininitted iUegaUty. Leamed counsel for fhe appeUant further ai^ued that only adiaission of appeUaut Jauain fhat on the basis of inutual partition (3f(IRft ^CTRI) that fhey are cultivating the land separately, they are residing separately aad they are using fheir agricultiiral apparatus 85 catfle separately are not sufficieat to prove fhe partition in absence of aay instruiuent of partition. Revenue record also. shows^that appeUant and respondeats No. l & 2 were joitit holder of the property which is siiificient for presuiuption (hat partition between parties have not been affected. Judgment dated 17/12/2009 passed by 2nd CivU Judge Class-1, Baikuntiipur and appeflate judgment dated 15/4/2011 passed by Pirst 6. 7. -j'- Additional Distnct Judee, Mauendragarh at Baikunthpur District Koriya (C.G.) perused. Both fhe Courts below have disinissed fhe suit aad appeal on. fhe groiind fhat appellant Jairain has not pleaded or adniitted partition but has admitted the factum. of inutual partition and on the basis of inutual pardtion separate possession, separate holdiag, separate cultivation by separate catUe & instruinent and separate residence. As per both fhe judgment unpugned, respondents No. 1 & 2 have speci&caUy alleged and deposed that after partition they are enjoyuig tfaeir separate property although names of all fhe persons have been scorded joiaUy. AppeUant has not pleaded or admitted the factuin of pardtion but finding of both the Courts below reveal that appeUant Jairaru has speci&cally adinitted iu Para-30, 31 & 32 of his evidence relatuig to aforesaid rautual partition and fact ofinutual partition, on the basis of aforesaid adniission of appeUaut by disinisshig the suit aad appeal bofh fhe Courts below have not coininitted aay illegaUly, I do not find any substaatial questiou of law for decision of this second appeal. Consequenfly, second appeal is liable to be dismissed aud is hereby disiaissed. No oider as to costs. Sd/- T.P. Sharnii y-