lss^ HIGH COURT OF CHHATTISGARH AT BILASPUR SecQndAppealNo,99_of2009 Vmod Kumar & Another Vs. Aarti Das & Others "Q,^ Post ofpronouncement ofjudgment and orders on V2-/05/2009. Sd/- N. K. Agarwal Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 99 of2009 AppeIIants Defendant No. 3 &4 Respondeiats Plamtiffs Defendant No. 2 Defendant No. 5 1. Vinod Kumar S/o Narad Prasad Satnami Aged about 11 years. 2. Manoj Kumar S/o Narad Prasad Satnami, aged about 11 years. Both Appellants Through Next Friend-Mother Parwati Bai W/o Narad Prasad Satnami, aged about 34 years, R//o village Nandeli, Tehsil Sarangarh, Distt. Raigarh (CG). Versus 1. Aarti Das S/o Sadhuram Panika, aged about 40 years. 2. Ganeshi Bai W/o Laxman Das Panika, aged about 40 years. 3. Mohan Bai D/o Laxman Das Panika, aged about 22 years. 4. Sohan Bai D/o Laxnian Das Panika, aged about 20 years. 5. Santosh Das S/o Laxman Das Panika, aged about 18 years Al! R/o village Nandeli, Tehsil Sarangarh, Distt. Raigarh (CG). 6. Dokri D/o Sonau Das Panika, aged about 65 years, R/o Village Parsadeeh Tehsil Sarangarh, Distt. Raigarh (CG). 7. State ofChhattisgarh, Through : Distt. Collector, Raigarh (CG). Second Appeal under Section 100 ofCode ofCivil Procedure (Single Beiich: Hositble Mr. N,K, Agarwal, J.) ^ Present : Slm N.N. Roy, Advocate for the appellante. Slm Ajay Dwivedi, Dy. Govt:. Advocate forthe State. ORDER (Passed on fz^ day of May,2009) Heard on admission. The instant second appea.l is direeted against the judgment and decree d^ted 30.01.2009, passed by the Additional District Judge Sarangarh, Distt. Raigarh (CG), in Civil Appeal No. 41- A/2006, which was preferred by the appellants/defendants, against the judgment and decree dated 29.08.2001, passed by First Civil Judge, Class I, Raigarh, (CG), in civil suitNO. 110- A/98, whereby, the first appellate court affirmed the decree, passed by the trial court. The brieffacts ofthe case are that, the pIaintifFs/respondent No. 1 to 5 instituted a suit before the court ofFirst Civil Judge Class I, Raigarh, seeking the relief of declamtion of title over suit land bearing Khasra No. 109/02, Area 0.214 Hectare, its possession, mesne profit and also for declaration that the sale deed executed by defendant No. 1/Sadhuram, with regard to suit land, in favour of appellants is not binding upon them. As per plaint allegations, 20 years prior to the date ofthe filing of the suit, an oral partition took place. In that partition, the suit land bearing Khasra No. 109/02, Area 0.214 Hectare was allotted to Husband of plaintiff No. 2 i.e Laxman Das in the month of July, 99. The defendant No. 1, 3 & 4 illegally -n ^C:L ^ f ^"Si I .^..^ ^"^^ / (^' v^ dispossessed the plaintiffs from the suit land and the said land had been sold by defendantNo. 1 in favour ofdefendantNo, 3 & 4 by registered sale deed dated 09.10,98 by taking benefit of revenue record a.nd therefore, the instant suit was filed by the plaintiffs for aforesaid reliefs, In reply to this, the defendant No. 1 Sadhuram, in para 3 of his written statement admitted the factiim of partition with the rider that the plaintiffs were restmined from alienating the suit propeity in the said partition. In para 4 ofhis written statement, he further pleaded that plaintifis, to fulfill their need of money, tried to sale the suit land to others then the defendant No. 1 offered other land in exchange ofthe suit land. The said offer was accepted by plaintiffs and the exchanged land was sold by them, and in turn, they relinquished their right over the suit land, therefore the plaintifis are not entitled for any relief as claimed and are bound by the sale deed executed by him in favour ofappellants. The trial court, after appreciatmg the pleadings of the parties, evidence led orally as well as documentary, held that the suit propei-ty was allotted to plaintiffs, pursuant to the oral partition', plaintiffs are not bound by the sale deed executed by defendant No. 1 in favour of appellants and decreed the suit. Above finding has been affirmed by the first appellate court. Tha main contentions of Shri N.N. Roy, learned counsel appearing for the appellants are that the factum ofpartition was denied by the defendant No, 1 and therefore, specific issue '^?^ -® regarding partition ought to have been framed by the trial coiirt, the court below, as well as the appellate court has wrongly come to conclusion that the suit property was allotted to the husband ofplaintiffNo. 2 in oral partition which took place 20 years prior to the date of filing of suit. He placed reliance on the judgment of Supreme Court in the matter of Chinthamani Ammal Vs. Nandgopal Gounder1 and contended that tiiis second appeal involves substantial question of law. Having heard the contentions mised by counsel for the appellants, and having pemsed the record with utmost circumspection, in my considered opinion, the instant appeal has no merit. The defendant No. 1 Sadhuram, in para 3 of his written statement, admitted the factum of partition with the rider that the plaintiffs were restrained from alienating the suit property in the said partition. In para 4 ofhis vvritten statement, he pleaded that when plaintiffs, to fulfill their need of money, tried to sale the suit land to others then the defendant No. 1 offered other land in exchange of the suit land which was accepted by the plaintiffs and the same vvas sold by them and plaintiffs relinquished their right over the suit land. This plea has not been proved by defendants by leading cogent evidence and tiierefore, the contention of the leamed counsel for the appellants that the partition was denied, is not correct. The Supreme Court, in matter of Chmthamani Aiiimal (Supra), obsen^ed as mider: 1 2007 (4)SCC 163 "17. In law their exists a presumption in regard to the contmuance ofajoint faiiiily. The party wliich raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-shares itselfwould not lead to a presumption of partition. Several other factors are required to be considered therefor." 8. Here in the instant case, the partition is established, based on the evidence led by the parties and admissions in the written statement ofdefendant No. 1, therefore, it cannot be said that partition was not duly proved. Therefore, the concurrent finding recorded by both the courts below regarding partition was essentially a finding offact, was rightly recorded, based on appreciation oforal as well as documentary evidence led by the parties. Therefore, I am of the considered opmion that 110 substantial question of law arises for determination in this appeal. The appeal is therefore liable to be and is accordingly dismissed at admissionstage. Sd/- N. K. Agarwal Judge Sahu