Slnglg Bench IN THE HON'BLE HIGH OOURT OF CHHATTISQARM AT BILASPUR SEOOSSED Sppeal NO« 4-4^ /2005 APPELLANTS ©13FENDANTS '- ^ 2) ^ ^ ^) ^x^ ^ ^?^y.. ^c'"^^>6 y ft^» ovs.^-w ^ 11) RESPONBENTS PL^INTIFS-S VSRSUS s- ^ Devi P rasad S/o late.Jeevrakhan Ti^ari^ aged aboufc €0 'y^ars^ Punaram s/o late Jeevrakhan Tiwari^ aged aboufc 55 years^ ©warkaPrasad S/o lafce iTeevrakhan Tiwari, aged 50 years^ Ayodhya Prasad S/o lafce JeevraSdaar Ti^/^ari, aged 45 years^ Ramesh Kumar S/o late J'eevrakhan Tiwari, aged 40 years^ Harkunwar Bai Widow of Late Jeevrakhan Tiwari, aged 85 years< , Panchi Bai w/o Devi Prasad Tiwari, aged 45 years^ Parwati Baj. ST/o Punarara TJLwari, aged 40.years» Shakun Bai w/o Dwarka Prasad Tiwari» aged 35 years* | Kali Bai K/o Ayodhya Prasad i Tiwari, aged 33 years. Kiran Baj. w/o Ramesh Kumar Tiwarx^ aged 31 years, All are R/o village Sabaratola. P*H< N» 56, P»S, S* Lohara, Tah. Kawardha, Disfcrict Kabirdham (C.G*)!,.! Sunder Lal S/o late H.u-nanahal Prasad Tiwari, aged 75 years, R/o villa^e Sabaratola, P*S» s Lohara, Tahsil Kawardha, Distt» K^birdham (C»G,)S -2- ( 2 ) j2') State of Chhattisgarh Through - Collecfcor Kawardha, Districfc Kabirdham (C,G«)',i SS0010 APPEAL U >ER SECTION 100 OF C,P,C* HIGH COURT OF CHHATTISGARH AT BILASPUR SA.No. 440 of 2005 Appellants Defendants Respondents Plaintiffs : Devi Prasad and others. VERSUS : Sundar Lat and another. Shri Malay Bhaduri learned counsel for the appellante. Shri J.D. Bajpai learned GA for respondent No.2/State. JUDGMENT (Passed orfc2°|-11-2005) Dhirendra Mishra.J The appellants/defendante have preferred this Second Appeal under section 100 of the Code of CMI Procedure against the judgment and decree dated 3.8.2005 passed by District Judge, Kabirdham in Civil Appeal No. 7-A/2005 confirming the judgment and decree dated 31.3.2005 passed by Civil Judge Class l Kabirdham in Civil SuitNo. 16- A/2005. 2. The brief facts of the case are that the parties to the proceedings are Uie membere of same family and their relationship has been described in the pedigree given in paragraph No.2 of the impugned judgment. The undisputed facts are that father of appellants No. 1 to 5 and husband of appellant No.6 namely Jeevrakhan was the real brother of respondent No.l/plaintiff and they were in all three brothers. They had 26.46 acres of agricufturaj land recorded jointly in their names. However, the said land was orally partitioned some 50-55 years prior to the filing of the suit and accordingly they were in possession of their respecth/e shares. As per the oral partition 9.65 acres of land was allotted to Jeevrakhan, 8.44 acres to Nanhelal and 8.37 acres to respondent No.l/plaintiff and out of which he sold 0.21 acres of land. It is also not disputed that Nanhelal had sold his entire holding. However, the land belonging to the parties continued to be recorded jointly. Thereafter, the plaintiff initiated proceedings for recording of the land fatling in his share separately in his name which is still pending before the concerned Tehsildar. 3. Case of the plaintiff is that his brother Jeevrakhan and after his death his heirs sold their entire holding measuring 9.05 acres. Nanhelal also sold his share of the agricultural land. The plaintiff moved an application before the Revenue Authorities to get his name exclusively recorded in the revenue papers with respect to the land talling in his share as described in paragraph 6 of the plaint. However, defendants No. 1 to 6 executed a registered sate deed dated 22.7.1996 and sold the suit land to defendants 8 to 12 and the plaintiff learnt about it only when he received the notice of mutation on 31.1.1997. He thereupon lodged a complaint with the Police. Defendants No. 1 to 6 and 8 to 12 in their written statemente denied the plaint altegations and stated that 9.65 acres of land as described in paragraph 5 of the plaint was in fact sold jointly by all the brothers. Land bearing Khasra No. 256/3 area 2.50 acres fell in the share of Jeevrakhan and they are in possession ofthe same. They ftjrther stated that the plaintiff was jn possession of only 5.66 acres of land and not of 8.16 acres. They also denied the execution of any sale deed. Hcwever, they were forced to execute sale deed as the plaintiff was not ready for partition. 4. Learned trial Court decreed the suit of the plaintiff recording a finding that the plaintiff was the owner of 8.16 acres of land and the defendants 1 to 6 are not the owners of land bearing Khasra No.25^3 area 2.50 acres and accordingly passed the decree of declaration and perpetual injunction. 5. The defendants preferred first appeal against the order of the trial Court and the first Appellate Court by the impugned judgment and decree dismissed the appeal and confirmed the judgment and decree passed by the trial Court. 6. Learned counsel for the appellants has challenged the concurrent findings recorded by bcrth the Courts below on the ground that though the plaintiff has faited to prove oral partition, even then both the Courts below have arrived at an erroneous conclusion that on the basis of oral partition the plaintiff was the owner of the property described in paragraph 7 of e plaint. Leamed counsel for the appellante further submits that the findings of both the Courts below that the sale deed in respect of land bearing Khasran No. 256/3 area2.SO acres in favour of defendants 8 to 12 by defendants 1 to 6 has wrongly been held to be void and the sa«dfinding (s perverse. It is argued that for adjudication of this appeat the substantial questions of law as enumerated just after paragraph 4 of the memo of appeal are involved. 7. I have heard teamed counsel for the appellant. 8. On the basis of the pleadings of the respective parties both the Courts below have arrived at the conclusion that the land in question was orally partitioned between the shareholders. However, the same continued to be recorded jointly in the revenue papers. It is not disputed that after partition Nanhelal had sold his share of agricultural land. The trial Court in paragraph 11 of its judgment while dealing with issue No.5 has held that the land allotted to the share of Jeevrakhan was not sold jointly by all the three brothers. This finding is based on evidence adduced by the defendants in this regard. The trial Court has also arrived at the conclusion that the plaintiffwas the owner of 8.16 acres of land including the disputed land of 2.50 acres and therefore, the sale deed executed with respect to the disputed land by the defendants was not binding on the '^5. plaintiff. The above finding is based on admission of the defendants in the written stetement. The stend of the defendants that disputed land bearing Khasra No. 256/3 was allotted to the share of brother Jeevrakhan has also been negatived by the trial Court and this finding is based on the pleading in the written statement as also on the evjdence led by the parties. The contention of the learned counsel for the appellants that the finding of the learned trial Court which is subsequently confirmed by the impugned judgment and decree is based on improper appreciation of the evidence on record is without any substance. The learned trial Court has arrived at the above conclusion only after mettculously dealing with the pleadings and oral evidence available on record. The above finding is also based on the admission ofthe defendants. The other question raised by the counsel for the appellants is that though the plaintiff has prayed for separate relief of declaration without paying proper court fee and on this ground also the suit was not maintainable. From the perusal ofthe written statement of the defendants it is evident that no such objection regarding valuation and court fee was raised by the defendants in their written statement and therefore, the defendants cannot raise such objection for the first time at this stag^. 9. Thus in view of the aforesaid discussion the judgment and decree passed by both the Courts below are strictly in accordance v^th law and the same are based on proper appreciation of the evidence avaiiable on record. 10. In the result, no substential question of law is Involved for adjudjcation of this appeal and the appeal being without merit is hereby dismissed. g^y^ Dhirendra Mishra Judge