^ w' /t-O r IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH SECOND APPEAL N0:^oy ^?'^-'••'.• 'r?.-? OF 2005 APPELLANTS PtAINTIFFS 0, g-'^ .*' -y ^•yy ^y. ^y 1. 2. 3. Ram Prasad, S/o Late Shri Dheer Sai, Aged about 47 years. Suraj Bhawan Singh, S/o Late Shri Dheer Sai, Aged about 43 years. Mangal Bhawan Singh, S/o Late Shri Dheer Sai, Aged about 40 years. All are caste Kanwar, R/o Village Chun Chuni Para, Gevra Basti, Tehsil Khatghora, District Korba (Chhattisgarh). Versus RESPONDENTS .EfEFENDANTS ^'' J.-' ., ^o c^- :^\. ^ 3. Ram Bharos, S/o Manmohan, Aged about 60 years. Ram Nath, S/o Manmohan, Aged about 66 years. Ram Charan, S/o Manmohan, Aged about 64 years. All are caste Kanwar, R/o Village Chun Chuni Para, Gevra Basti, Tehsil Khafghora, District Korba (Chhattisgarh). State ofChhattisgarh, Through the Collector, Korba, Distaict Korba (CUhattisgarh). \-- SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. XI-HC-22 ^^ •^l'llld'4, afll'H'is, [sicll'yy tii*i<ti ai<ir<^s..:^.;.;ra1 200 •>' fes^i' 311^1 ^il h-tt* s^v sft'4ich ^a ail^T ?^IIWgf??T qil^4il ^IH<?lf ^^^ •(^KSK i;3iPgH3n^[' ^£.. Shri H.S.Patel. learned couns^ Heard on admission. The appeilants/piaintiffs have for the appellanyplaintiffs. preferred this appeai under SectiQn 100 ofthe Code of.Civil Procedure afoainst the impugned judgment dated •ludge, Xorba in Civil Suit.No. 71-A'04 ith whereby the learned District Jusjge'aliowmgtheappeal preferred by |the judgment dt. 06.01.2004 passed jhora in G.S.N^, 20-A'02, set :aside IFavpur pf the appeSiants/piaintiffs anci dissnissed their suit. ' (Parties h^reinafter refsrred to ,as per'their ie Civjl Judge, C!ass-!l, the judgment and decree passed in f^^jirfV•/ 3. / The plaintiffs filed a.civil suit therein that origlnal piaintiff DheersE |:or declaration' and partition avemni 'and father of defendants No. 1 to 3 purposes and in lieu of vAieh he :Khasra No. 315, area 0.50 acres'to| defendants No. 1 to 3 -wentto Halka him to partition thejoint holdings bei 'the parties vAereupon theHalka some papers and assured that part| Tehsildar. Sub Tehsi! Deepka, vid^ property equaliy .jointly • recorded in the name of Dljeersai and defendants No. 1 to 3. had sold -certam land for his' own |iad handed ov'er the possession of brother Dheersai.' Dheersa'i and Patwari on 19.11(.2001 and requested jring Khasra No. 315 equaliy betvifeen Ipatwari -obtained ther sisnatures on :|tion Vrfii! be effected. Hova'ever, Naib order dated 21.11.200.1 .instead of the parties assigned onty.1.02 [Tlt^ ^fe^ XI-HC-22 ~s^~:WvPf, ®fl1«*is,facii'uy s..:..is;...y?..y............ 111W( ch*<i<*)""""" "'""" 'g^ 200c? fa'b<a" sn^r^r R-ii'* sn^i ^*iich -Hfer SlI^ITOIWHfeT -2— ^H^^I •tfl^dl* ^ f^tSt <^1-<-ri.!< ^T SflfigH OT^I acres ofla i. 315 to the share ofplainti theshare ofthe ch was to be given ^ defendarrts aind the remaining 1.9Q acres Even Divisional Land Reve ThereTore, 'ntiffs chaijenged the Katghora on 22.01 Code vAich was rejj instant suit forpartjtiorl . the plaintiffs was aiso partitloned order -of Tehsildar before She Stib .2002 under Section 44 of the M.P. !Cted by the S.D.O. on 29.01. was fiied. . . . ' cfi 5. ' in thev«riiS plaint an<j averre< taten plaee 70-72 ye; partitioneci the land alSotted to the shj and 'since then they are in: separatt 21:'11.20Q1 theNaib Tehsildar, Deepf. possession of the.parties. The cor^ bearing K-.No. 315'area'0.50 acrt v^ also denied. !t vms Turther averred tli consent offatherofthe defendant in jfendants denied theaverments in.ths safter,' the defendants have' aiso bre:of Manmohan among.themselves Oosssssions. By the order dated |<a effected partitron as per the acSuai [tention of the plaintlffs.that the land is given separateiy to Dhee'rsai, vuas latthe mutation was effeetedwith the the respect the trial Court rhutation daied 21.11.20Q1 passed parties, issues' v/ere decreed the suit by Qn the basis of pleadings o1[ framed and after recording evidenc^ recording a •finding that the order of N.aib Tehsfldar, Deepka v»as iiiegal ^ entitledfor equal shares. Beingag^rieved bythe order ofthe trial Court the defendants preferred appea! fc|< learnsd District Judae bythe impugrted iudament ailowed the appeai, set nd the plaintiffs and defendants are [Tft^ ^fo<l XI-HC-22 SIT^I^iT R-ii.'sb 3ni?i '^^i<t> 'yfsn 'S^ "4NI<vlil, ofll'M'ls, (stcll'yy Wqfff ShKlch .^.:^^.^.'?.^£>. 20C 3ii^r ?^iiw ^fgtT aside the judgment of the triai qourt .and dismissed. the suit of the jppeHants/plaintiffs submits that the is based on improperappreciatton of ^nd the.same has been passed by 7. Leam'ed counsei for the judgment pf the first appeliate Courij the evidence avai!ab!e on record ighoring the gntries ayaiiable in the <{ mutation passed by Nai'b Tehsildar, o-fthe said ordershows that signat4 are not avai'able in the said order orcler is passed in the presence of "Whether the iow^; setting aside the has .'been ctearly h|i plaintiffs' conciusion rned District Judge 4 and discussingl ,the pleadings ofth4 ^>l<ti?WlT1 HT^lT'^1^^ <^^d.l< ^rsi^raan^l Deepka, Kaighora as a bare perusal Ires/thumb impression ofthe plaintiffs it has been Simply reeorded that ths he parties. Therefore, it is contended of law arise for adjudication of this was lustined in fjnding of the trial Court wherein it !d that no partition was effected |sf Dheersai.and Manmohan?" • j Lawis appiicable.in the case of "Whether the Hindl piaintiffs and de1[i Scheduled Tribe ci| ! -have heard learned coi|nsel for the appeliants/piaintifFs isionofthls iitsr referring to the statements of the the same in detailhas arrived at the plaintiffs in the plaint ars contradicted' [ti^^fi^ XI-HC-22 ^sf -i||^lc)i|, »fll*)<is, [siwi.yy HltjMI Shtil^ . 5-T9--s-a <?/tf>" "^ 200 fe^T' aiKn^T R-fi'* sn^i st)<4i<=h •Hf?fl 311^1 TOHW TlftTT c-t l^t'Lii<vi4iTt ^wwi ^ t^st ^R^FC ^sipgnsn^ bytheir ownwitnesses PW-1 Ram Pra[sad and PW-2 Suraj Bhawan Singh vAo are themseives plaintiffs .and i'ndependenf wtness RW-3 Dular Sai v^io claims to be of 75 years and fhe it is estabiished that partition in the parties and after partitfon thei parties statements on path ofthesevAnesfesl famiiy hadbeen effected betvireen'the | were cuitjvating their shares separa|te!y. Wieticutously discussing the etfidence avaiiable on record the first|appeliate Court has held that since 30-35 years the parties are in separ^t®possessions of their respective shares, therefore, a fresh order of partitlon could not be passed ignori.ng the eariier partitioh. Refemng to the do|cument of Ex.P/1 it is held that the mutationordervias passed in presenc^ ofthe parties. On the 'other hand, learned Ch the plaintiffs' had jgnored the admissior also ignored the fact that the order dtj 21 the plaintiffs as Ex.P/1, mentionedth^t the mutual consent of the parties so| have denied any such consent and the| 11. After going through the record ^ ige vAile decreeing ths suit of vAnesses of the plaintiffs and .11.2001 which has been filed by sr of mutation uas passed wth on the ground that the piaintiffs nd the judgment ofthe flrst appeliate Courtas also judgment ofthe tria! Cot|rt, this Couri: is ofthe opinion that the j tearned Dlstrict Judge has recprded'^ finding offact after discussing the evidence available on record in cfeta'i and sorrectly arrived at the conc'usion that plaintiffs have faileifl to establlsh that the property in question was the property of j'oint 'l^imily and no partition was effected between the father ofthe piaintiffs ane^ is question o.ffact. There i.s no perver^ityoriliegaiityintbeorderpassed Ehe defendants. The above question r' [^^firt FFIF XI-HC-22 ~FSI '^WMC(, ®Ti1<i*is.isiwi'ay *<l*<"tf •jhtll^ S-^-r-D^ "W^ 200 S~ 311^'I^iI . h-u* 3^1 st)Hicfr yfia ^T<LlM'4lrl TTFT^f ^ t^TCt' "<f^^l< ^7 sif^rii snt^r the iearned District Judge and no sul this appeal for its adjudicatipn. The a{ to be dlsmissed at the motion stag^ dismissed. : iai question of !aw-is invoiye< pea] bemg devoid of merits desero same is accordi! Sd/- Dhirendra Mishra Judge "T--_'• ^^Si- ^^J^2-Z2a2^-