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Chattisgarh High Court

(A). Siyaram vs A. Prem Singh (Dead ) Through Lrs. 41 ... on 14 January, 2020

Author: Sanjay K. Agrawal

Bench: Sanjay K. Agrawal

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                                                        NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
             Second Appeal No.137 of 2005
  1a. Siyaram S/o Lachindar Aged about 50 years
  1b. Shivcharan S/o Lachindar Aged about 46 years
       Both R/o Village Adenga, Tehsil Keshkal, Dist :
       Bastar (CG)
  1c. Siyabati D/o Lachindar, Aged about 48 years, R/o
      Village Boregaon, Tehsil : Keshkal, Dist : Bastar
      (CG)
  1d. Bhango Bai D/o Lachindar, Aged about 44 years, R/o
       Village Kondagaon, Tehsil Keshkal, Dist : Bastar
       (CG)
  1e. Suraj Bai D/o Lachindar, Aged about 40 years, R/o
       Village Sambalpur, Tehsil Kondagaon, Dist: Bastar
       (CG)
  2.   Ramlal (Dead) through his LR's:­
       2(a) Smt.Rajkumari W/o Late Ramlal, Aged about
       60 years,
       2(b) Radheshyam S/o Late Ram Lal, Aged about 44
       years,
       2(c) Ghanshyam S/o Late Ram Lal, Aged about 41
       years,
       All R/o Post Adenga, Tehsil Keshkal, District
       Bastar (CG)
       2(d) Radha Kuldeep D/o Late Ram Lal, W/o Nagraj,
       aged about 46 years, R/o Near Saket Colony, P.S.
       Bodhghat, District Bastar (CG)
  3.   Ramdas (deleted)
  4.   Gyan Das S/o Brijlal, Aged about 26 years, R/o.
       Village Adenga, Tehsil Keshkal, Dist: Bastar (CG)
                                 ­­­­ Appellants/Plaintiffs
                          Versus
1. Harilal (Dead) through his LR's:
  1a Prem Singh (Dead) through his LR's:­
1a(i) Smt. Uma Kuldeep W/o Late Shri Prem Singh,
  Aged about 40 years.
                              2

  1a(ii) Kumari Chanchal D/o Late Prem Singh, Aged
      about 7 years
         Re.No.1a(ii) is minor through natural guardian
        of Res.No.1a(i) Smt.Uma Kuldeep
    Both R/o village Adenga, Post Adenga, Mohalla
    Bandapara, Tehsil Keshkal, District Kondagaon.
    1.b Sunder Singh S/o Late Harilal Gada, aged about 42
        years, R/o Village Adenga, Bajar Para, Tehsil
        Keshkal, District Kondagaon (CG)
    1.c Smt. Fulo Bai D/o Late Harilal, W/o Shri Shankar
        Korram, aged about 45 years, R/o Sambalpur,
        Bhanupratappur, District Kanker (CG)
    1.d Jhilo Bai @ Phulbai D/o late Harilal, aged about
        43 years, W/o late Shri Fullchand Korram, R/o
        Bhursidongari, District Kanker (CG)
    1.e Mangin Bai @ Sonbai Wd/o late Shri Harilal Gada,
        aged about 65 years, R/o Adenga, Bandapara,
        Tehsil Keshkal, District Kondagaon (CG)
    1.f Smt.Lata D/o Late Harilal, W/o Not Known, R/o
        village Govindpur, Tehsil Kanker, District Kanker
        (CG)
  2. Dal Singh S/o Laxminath Gada, Aged about 40 years,
  3. Kunwar Singh S/o Laxminath Gada, Aged about 38 years,
  4. Naresh S/o Sukhlal Gada, Aged about 35 years,
  5. Suresh (Dead) through his LR's:­
5a. Smt.Leela Gada W/o Late Shri Suresh Gada, aged about
40 years
5b. Ku. Vishakha @ Jyoti Gada, D/o Late Suresh Gada, aged
about 16 years
5c. Chuman Gada S/o Late Shri Suresh Gada, aged about 15
years
5d. Keshav Gada S/o Late Shri Suresh Gada, aged about 12
years
  6. Parsu S/o Phool Singh Gada, Aged about 32 years
  7. Kisan S/o Phool Singh Gada, Aged about 28 years
  8. Babulal S/o Phool Singh Gada, Aged about 28 years
  9. Goverdhan S/o Phool Singh Gada, Aged about 26 years
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    All R/o Village Adenga, Tehsil Keshkal, Dist : Bastar
    (CG)
  10.    Banshiram (Dead) through his LR's:­
    10a. Roop Dai W/o Late Shri Bansi Raam, Aged about 70
    years
    10b. Mohan Lal S/o Late Shri Bansi Raam, Aged about 50
    years
    10c. Sohan Lal S/o Late Shri Bansi Raam, Aged about 48
    years,
    All R/o Adenga    Bandapara,    Tah:   Keshkal,   District
    Kondagaon (CG)
    10d. Ghasnin, D/o Late Shri Bansi Raam W/o Late Shri
    Bais Raam, Aged about 55 years, R/o Baangaon, Post
    Pasangi, Tehsil Farasgaon, District Kondagaon (CG)
  11.    Nathli (deleted)
  12.    Roopdehi W/o Banshiram, Aged about 57 years
  13.    Mohanlal (Dead) through his LR's:
         Budhiyarin W/o Mohan Lal
  14.    Sohanlal S/o Banshiram Gada, Aged about 22 years
    Respondents 12 to 14 are R/o Village Bada para, Tehsil

Keshkal, Dist: Bastar (CG)

15. State of Chhattisgarh Through the Collector, Bastar, Jagdalpur (CG) ­­­­ Respondents/Defendants For Appellants/Plaintiffs: Mr.Prafull Bharat and Mr.Akash Pandey, Advocates For Res.No.5(a) to 5(c) : Mr.Shobhit Koshta, Advocate For Respondent No.15 : Mr.Sanjeev Kr. Agrawal, P.L. Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 14.01.2020

1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by 4 the plaintiffs is as under:­ "Whether the finding arrived at by both the Courts below ignoring the substantial revenue records Ex.P­1, P­2 and P­3 are legal, if not, what is the effect thereof?"

[For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

2. The suit property was originally held by Dukhwa. He had four sons namely Neelkant, Sagaram, Sukhanand and Laxman. The plaintiffs are sons and grandson of Sagaram, whereas the defendants are sons and daughters of Sukhanand and Laxman. Four plaintiffs (sons and grandson of Sagaram) filed a suit for declaration of title and possession stating inter­alia that the suit property was originally held by their grandfather Dukhwa and in mutual partition, it fell in share of Sagaram. It was further pleaded that Dukhwa has effected the partition during his lifetime between four sons namely Neelkant, Sagaram, Sukhanand and Laxman and name of Sagaram stood recorded in revenue records prior to 1954­55 and as such, the defendants have no right and title over the suit property. Since the defendants have filed an application for partition under Section 178 of the Madhya Pradesh Land Revenue Code, 1959 on 15.6.95 and therefore, need arises to 5 file a suit. By way of amendment, in para­7A of the plaint, the plaintiffs have claimed relief of perfection of their title by way of adverse possession and permanent injunction and also pleaded in para­6A of the plaint that in the year 1954­55 partition took place during the lifetime of Dukhwa and the suit property fell in share of the plaintiffs' father and grandfather and claimed declaration of title and recovery of possession.

3. The defendants have filed their written statement and denied the averments made in the plaint stating inter­ alia that the suit property is a joint Hindu family property of the plaintiffs & the defendants and further denied the sole ownership of Sagaram. It was also pleaded that as per Bastar State Revenue Manual, in the revenue records, even if the property is joint, name of only elder son is recorded in revenue records and not of all co­sharers and fact of partition was denied during life­time of Dukhwa. In para­14, the defendants have stated that the plaintiffs have sold their 9.35 acres of land and remaining land at present is 16.94 acres only.

4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 17.9.2002, dismissed the suit holding that the plaintiffs have failed to prove 6 that partition was effected among sons of Dukhwa and Sagaram got the suit land in his share as a result of partition. On appeal being preferred by the plaintiffs before the first appellate Court, the said appeal Court dismissed the appeal holding that the defendants are in possession of the suit land and Exs.P­1 to P­3, revenue entries, are not sufficient proof regarding their title and upheld finding of the trial Court. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/plaintiffs, in which substantial question of law has been formulated by this Court, which has been set­out in the opening paragraph of this judgment.

5. Mr.Prafull Bharat, learned counsel for the appellants/plaintiffs, would submit that both the Courts below have concurrently erred in ignoring the admissible documents/revenue records (Exs.P­1 to P­3) in which name of the plaintiffs' father Sagaram has been recorded from 1936­37 and 54­55 as owner/title­ holder and in Ex.P­1 name of Sagaram has been recorded as bhumidhari, as such, it goes to show that the suit property fell in share of Sagaram, plaintiffs' father/ grandfather and therefore, the plaintiffs are entitled for decree of declaration of title and recovery of 7 possession.

6. On the other hand, Mr.Shobhit Koshta, learned counsel for respondents No. 5(a) to 5(c), would submit that both the Courts below have concurrently and rightly held that the plaintiffs have failed to prove that the suit property fell in share of their father and grandfather Sagaram in partition held by Dukhwa during his lifetime among his four sons and finding recorded by two Courts below that fact of partition by Dukhwa during his lifetime is not established. He would further submit that the suit property fell in share of the plaintiffs' father is also not established, which is finding of fact. Even otherwise, Ex.P­2 records the names of Laxman and Sukhanand as sikmi kastakar and according to Bastar State Revenue Manual, if the property is joint, name of elder son is recorded in revenue records. Even otherwise, revenue document subsequent to 1954­55 has not been filed by the plaintiffs to demonstrate that they were continuing in that capacity and no question of law has been framed with regard to the partition, as such, the appeal deserves to be dismissed.

7. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

8. Admittedly, the suit property was originally held by Dukhwa and after his death, it was inherited by his four sons namely, Neelkant, Sagaram, Sukhanand & Laxman and the suit property fell in share of Sagaram, father of plaintiffs No.1 to 3 and grandfather of plaintiff No.4. After partition so made, name of Sagaram stood recorded in revenue records prior to 1954­55, which is apparent from Exs.P­1 and P­3, but in Ex.P­2, names of Laxman and Sukhanand were recorded as sikmi kastkar. Apart from this, no further document has been filed by the plaintiffs to demonstrate that name of Sagaram or his legal representatives/plaintiffs were recorded in revenue records as owner of the suit property after 1954­55.

9. The trial Court after appreciating oral and documentary evidence available on record has clearly held that the plaintiffs have failed to prove the fact that the suit property fell in share of Sagaram in partition held by Dukhwa during his life time between his four sons. Plaintiff witness No.1­Ramlal has surprisingly claimed 28 acres of land. In para­6, Ramlal (PW­1) has clearly admitted that 12 acres out of 28 acres of land has been sold by his father and remaining land at present is 16 acres only. In para­3, plaintiffs witness Kapoor Chand (PW­2) has also admitted that after death of Dukhwa, original holder, 9 the suit property came in the name of Sagaram and Sukhnand & other brothers are in cultivating possession of the suit land.

10. At this stage, para­XXII of the Bastar State Revenue Manual of the year 1931 which includes Revision of Grazing and Commutation Rules, 1935­1940 provides as under:­ "XXII. Shamil Kasht. The practice of joint cultivation by members of an aboriginal family is recognised by the State. The head of the family is recorded as tenant, the cattle owned by the Shamilkashtkars are recorded in his name and he is responsible for the payment of grazing dues. In writing up the list patwaris should insert the names of the Shamilkastkars below that of the head of the family to avoid confusion.

Where a Shamilkastkar holds a 'bari' 'marhan' or other small cultivation apart from his family and pays rent direct to the State his name will be separately written in the grazing list and he will be liable to the payment of commutation dues provided he is not living jointly with the head of the family. If such a Shamilkastkar has a holding of one 'nagar' he will be entitled to the usual concessions for any cattle in his possession, his surplus cattle, if any, being included in the family assessment.

Shamilkashtkars not payment rents separately will be assessed, as before, to Thota Patti."

According to the aforesaid rules, the head of the family is recorded as tenant and practice of joint cultivation by members of an aboriginal family is recognised by the State.

11. From perusal of Ex.P­2 it appears that in column 12, names of Dukhwa's other sons Laxman and Sukhanand 10 are also recorded as sikmi kastkar and there is no further khasra document establishing the continuation of entry made in Ex.P­1 and Ex.P­3, as such, finding recorded by two Courts below that the plaintiffs have failed to prove that the suit property exclusively fell in share of the plaintiffs' father and grandfather Sagaram is not proved is finding of fact based on evidence available on record, which is neither perverse nor contrary to record. I do not find any merit in this second appeal. The substantial question of law is answered in favour of the defendants and against the plaintiffs.

12. Accordingly, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own cost(s).

13. A decree be drawn­up accordingly.

Sd/­ (Sanjay K.Agrawal) Judge B/­