Chattisgarh High Court
Chandra Prakash Gupta And Ors vs Rishikesh Gupta And Others 29 ... on 6 September, 2018
Author: Ram Prasanna Sharma
Bench: Ram Prasanna Sharma
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 271 of 2005
Reserved on : 09.08.2018
Delivered on : 06.09.2018
1. Chandra Prakash Gupta, aged 52 years,
S/o Late Makhanlal Gupta,
R/o Baniya Para, Durg, District : Durg (C.G.) (Deleted)
2. Om Prakash Gupta (Now Dead)
Represented by:-
(a) Smt. Sarla Gupta, aged about 55 years,
W/o Late Shri Om Prakash Gupta,
R/o Baniya Para, Durg, District- Durg (C.G.)
(b) Smt. Jyoti alias Manisha, aged 36 years.
D/o Late Shri Om Prakash Gupta, W/o Shri Rajesh Agrawal
(c) Smt. Pushpanjali alias Renu, aged 33 years
D/o Late Shri Om Prakash Gupta,
(d) Smt. Gitanjali alias Ritu, aged 31 years
D/o Late Shri Om Prakash Gupta, W/o Shri Manish Agrawal,
R/o Kasaridih, Durg, District- Durge (C.G.)
(e) Arti Gupta, aged 28 years.
D/o Late Shri Om Prakash Gupta,
R/o Baniya Para, Durg, District- Durg (C.G.)
(f) Rinku, aged about 26 years.
D/o Late Shri Om Prakash Gupta,
R/o Baniya Para, Durg, District- Durg (C.G.)
(g) Mangal Prakash alias Rakhi, aged 22 years.
S/o Late Shri Om Prakash Gupta,
R/o Baniya Para, Durg, District- Durg (C.G.)
3. Smt. Ratna Prabha Jain, Aged 65 years,
W/o Shri Babulal Jain,
R/o Mohan Nagar, Durg, District- Durg (C.G.)
---- Appellants
2
Versus
1. Rishi Kesh Gupta, aged about 25 years, S/o Late Shri Surya Prakash
Gupta, R/o Kasaridih, Durg, District- Durg (C.G.)
2. Surya Prakash Gupta (Now Dead)
Represented by:-
(a) Ku. Jaya, aged 18 years,
D/o Late Surya Prakash Gupta,
R/o Kasaridih, Durg, District- Durg (C.G.)
(b) Shubham, aged 12 years (Minor)
S/o Late Surya Prakash Gupta,
Through Mother and next Friend Smt.. Chandrakala,
R/o Kasaridih, Durg, Distric- Durg (C.G.)
(c) Smt. Chandrakala, aged 45 years
W/o Late Shri Surya Prakash Gupta,
R/o Kasaridih, Durg, District- Durg (C.G.)
3. Smt. Shashi Prabha Agrawal, aged 58 years,
W/o Jagat Lal Agrawal,
R/o Aama Para, Durg, District- Durg (C.G.)
4. Smt. Sneh Prabha Agrawal, aged 55 years,
W/o Krishna Kanta Agrawal,
R/o Santra Badi, Durg, District- Durg (C.G.)
5. State of Chhattisgarh through Collector Durg, District- Durg (C.G.)
---- Respondents
For Appellants : Mr. Manoj Paranjpe & Mr. Anurag Singh,
Advocates
For State/ respondent No.5 : Mr. R.K. Jaiswal, Panel Lawyer.
Hon'ble Shri Justice Ram Prasanna Sharma
CAV JUDGMENT
1. This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against judgment/ decree dated 08.04.2005 passed by First Additional District Judge, Durg (C.G.) in Civil Suit No. 7-A/2004, wherein the said court declared 7/24th share of respondent No. 1 in property 3 mentioned in Schedule-C of the plaint.
2. As per case of respondent No. 1, property mentioned in Schedule-C is ancestral property and original owner of the said property was one Makhanlal. He died on 03.08.1988 leaving behind three sons namely Surya Prakash Gutpa, Chandra Prakash Gutpa and Om Prakash Gupta and three daughters namely Ratna Prabha Jain, Shashi Prabha Agrawal and Sneh Prabha Agrawal.
3. Respondent No. 1- Rishi Kesh Gupta who is son of Surya Prakash Gupta filed a suit for partition in which he mentioned that property mentioned in Schedule- A & B of the plaint have already been partitioned, but property mentioned in Schedule-C is not partitioned. Property mentioned in Schedule-C are land bearing Khasra No. 995/01 admeasuring 2.22 acres situated at village- Kasaridih, Patwari Halka No. 77, Tahsil & District- Durg (C.G.). Movable property mentioned in Schedule-C and one house situated at Baniya Para, Durg within municipal area.
4. The core issue for consideration of this Court is whether the trial court addressed real issues between the parties in its true perspective.
5. No record of property mentioned in Schedule-C was filed before the trial court. The trial court has also not considered pleadings of other side that partition already took place between the parties on 30.03.1982 and house situated at Baniya Para, Durg is recorded in the name of Chandra Prakash Gupta and Om Prakash Gupta.
6. Again it is pleaded by other side that Chandra Prakash Gupta was recorded owner of agricultural land mentioned in Schedule-C and no cash or ornament is left to be partitioned.
7. It is clear from record of the trial court that the documents regarding property 4 mentioned in Schedule-C was not produced before the trial court. The trial court has also not considered pleadings of other side and without looking to the record, the trial court decided the issue in a very slipshod manner. When record regarding land of village- Kasaridih and the house situated at Baniya Para, Durg was not available, it is not clear as to whether the property is ancestral property or not.
8. Again it is not clear that on whose name the said property is recorded and on what basis such record is maintained. It is also not clear that any movable property is available for partition and who is in possession of said movable property. The trial court has power to call for record from the institution like revenue department and municipal corporation for deciding the issues, but record was not called for. It appears that the trial court has not addressed the real issues between the parties and therefore, the matter requires reconsideration by the said court.
9. Accordingly, the appeal is allowed and the judgment and decree passed by the trial court is set aside. The case is remanded back to the trial court for addressing real issues of the parties and decide the matter afresh.
10. Both the parties are directed to appear before the trial court on 25 th October, 2018 for further proceedings.
Sd/-
(Ram Prasanna Sharma) Judge Arun