HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: RESPONDENTS: APPELLANT: RESPONDENTS: SecondAppeal No.362 of 2009 Kaushat Prasad Versus Smt. Kokil Bai alias Kaushila Bai and another AND Second Appeal No.205 of 2010 Smt. Kokil Bai @ Kaushila Bai Versus Kaushal Prasad and another th Post for pronouncement of iudament on 27l" Auoust. 2010 Sd/- T.P. Sharma Judge .»" : 'Y. * ^'/ HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT/: (Plaintiff) Second Appeal No.362 of 2009 Kaushal Prasad, aged 57 years, son of late Shri Rameshwar Soni, resident of village Boirpara, tahsil Lormi, district Bilaspur (C.G.) Versys 1. Smt. Kokil Bai alias Kaushila Bai, aged 70 years, daughter of late Shri Rameshwar Soni, resident of village Boirpara, tehsil Lormi, district Bilaspur 2. State of Chhattisgarh, through the District Collector, Bilaspur(C.G.). {Second appeal under Section 100 ofthe Code of Civil Procedure, 1908} RESPONDENTS/: (Defendants) Present: Mr. Somnath Verma, counset for the appellant. Mr. Rahul Mishra, counsel for respondent No.1. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent No.2. AND APPELLANT/: (DefendantNo.1) RESPONDENTS/: (Plaintiff) (Defendant No.2) Second ApReal No.205 of2010 Smt. Kokil Bai @ Kaushila Bai, aged about 70 years, D/o Late Rameshwar Soni, R/o Village Boirpara, Tah. Lormi, District Bilaspur (CG) Versus 1. Kaushal Prasad, aged about 57 years, S/o Rameshwar Soni, R/o Vill. Boirpara, Tah. Lormi Distt. Bilaspur (CG) 2. State of Chhattisgarh, through the District Collector Bilaspur (CG) {Second appeal under Section 1 00 of the Code of Civil Procedure, ^908} Present: Mr. Rahul Mishra, counsel for the appellant. Mr. Somnath Verma, counsel for respondent No.1. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent No.2. Sinale Bench: Hon'ble Mr. T.P. Sharma, J '\- 3/ ,y r<^0 JUDGMENT (Delivered on 27thAugust, 2010) 1. Since both the above appeals are an'sing 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 civil suit against his sister Smt. Kokil Bai, respondent No.1 in S.A.No.362/2009, for declaration 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 No.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 father was also in possession of the property and partition took place between respondent No.1 & her father i.e. father of the appellant also, during the life time of his father. After the death of father of the appellant & respondent No.1, respondent No.1 has executed an agreement (Ex.P- 1) on 26-6-81 in which she 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 & 0.081 hectare, respectively, total 0.956 hectare. 3. Respondent No.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 not retinquished any land in favouF of the appellant vide agreement Ex. P-1, lands purchased vide Exs.P-2 to P-6 in the name of the appeltant had been purchased by her father in 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, Mungeli vide its judgment & decree dated 18-11-2008 passed in Civil Suit No.SO-A/2007, has decreed the suit to the extent of Khasra No. 104 area 0.50 acre and Khasra No.96 area 0.30 acre, purchased in the name of the appellant vide Exs.P-5 & P-6 and also arrived at a finding that this 'A ../ ^,' ^' property was owned by joint family, and therefore, the appellant & respondent No.1 are equally entitled for share over the property. 5. Judgment & decree of 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 behalf of the appellant, exclusive owner of the property 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 account-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 accepting conscious execution 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 of 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 only four years, he was not hav;sng source of income and his father has purchased the property in his name, therefore, the Court below has committed illegality,by dedaring Kaushal Prasad as exclusive owner of the property purchased vide sale deeds Exs.P-2 to P-4. Substantial question of law for determination of Second Appeal No.205/2010 would be that whether the Court below has comm'itted any illegality by declaring Kaushal Prasad as exclusive owner of the property purchased in his name when he was minor. 8. I have heard learned counsel for the parties and perused the impugned judgment & decree as also the record. 1 have also examined oral & documentary evidence adduced on behalf of the parties. 9. In the present case, as per pleadings and evidence of the parties, certain lands were purchased vide Exs.P-2 to P-6 in the name of Kaushal "^r- •t, .^ '. t ^'.,/ Prasad and certain lands were purchased vide Exs.P-7 & P-8 in the name of Kaushal Prasad & Smt. Kokil Bai. Kaushal Prasad has examined witnesses in order to prove conscious execution of Ex.P-1 , the alleged agreement dated 26-6-81. Ex.P-1 contains thumb impression of Smt. Kokil Bai. Smt. Kokil Bai has not acted upon the alleged agreement, inter alia, her name 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 bel.ow 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, even she has not acted upon Ex.P-1 and the lower appellate Court has also arrived at a finding that Kaushal Prasad is owner of the lands purchased in his name, though he was 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 tand. In absence of other contradictory 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 not find any illegality in the judgment & decree impugned of the lowerappellate Court or any substantial question of law for decision of the second appeals. Consequently, both the appeals are liable to be dismissed and they are hereby dismissed, in limine. Parties shall bear their costs. 11 Advocate fees as per schedule. 12. Decree be drawn accordingly. Sd/- T.P. Sharma Judge Soma