Chattisgarh High Court
Ramesh Kumar Mishra vs A Smt. Tara Devi (Deleted) on 7 August, 2025
1
NAFR
REKHA
SINGH
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 157 of 2004
1 - Ramesh Kumar Mishra S/o Asharfilal Mishra Aged About 57 Years
R/o Village Chachadi, Patwari Halka No. 16, R. I. Circle Dashrangpur,
Tahsil And District Kawardha, Chhattisgarh. Presently In Government
Service And Residing At D-11/14, Chhat Imli, Bhopal, Madhya
Pradesh. ........Plaintiff., District : Bhopal, Madhya Pradesh
...Appellant/Plaintiff
versus
1 - A Smt. Tara Devi (Deleted) As Per The Hon'ble Court Order Dated 26-
11-2021
1.1 - B. Smt. Uma Devi W/o Shyamsundar Tiwari Grade-I Clerk, O/o
Upper Commissioner, Tribal Development Tribunal, Post Mukam, Rewa
Madhya Pradesh., District : Rewa, Madhya Pradesh
1.2 - 1-C. Ramkrishna Mishra (Dead) Through Lrs. Advocate, Kawardha,
Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh
1.2.1 - C (A). Smt. Sarita Mishra W/o Late Shri Ramkrishna Mishra Aged
About 65 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.2 - C. (B). Manish Mishra S/o Late Shri Ramkrishna Mishra Aged
About 45 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.3 - C. (C). Ashish Mishra S/o Late Shri Ramkrishna Mishra Aged
About 43 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.4 - C. (D). Chandresh Mishra S/o Late Shri Ramkrishna Mishra Aged
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About 36 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.5 - C. (E). Askhilesh Mishra S/o Late Shri Ramkrishna Mishra Aged
About 34 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.6 - C. (F). Smt. Shraddha Mishra D/o Late Shri Ramkrishna Mishra
Aged About 40 Years R/o Pradeep Auto Parts, Near Police Station Old
Bus Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
1.2.7 - C. (G). Smriti Dwivedi D/o Late Shri Ramkrishna Mishra Aged
About 38 Years R/o Pradeep Auto Parts, Near Police Station Old Bus
Stand Lormi, District Mungeli, Chhattisgarh., District : Mungeli,
Chhattisgarh
2 - State Of Chhattisgarh Through Collector Kabirdham, Chhattisgarh.,
District : Kawardha (Kabirdham), Chhattisgarh
---- Respondents
For Appellant/Plaintiff : Mr. H.B. Agrawal, Senior Advocate along with Ms. Sandhya Rao, Advocate For State : Ms. Shailja Shukla, Dy. G.A. For Respondent No.1B : Ms. Anu Mishra, Advocate holding the brief of Mr. Malay Shrivatava, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 07.08.2025
1. The appellant/plaintiff has challenged the judgment and decree passed by the learned Additional District Judge, F.T.C., Kawardha, in Civil Suit No.16-A/2002 dated 05.07.2004.
2. The plaintiff filed a suit for declaration of title and permanent injunction with respect to the properties mentioned in Schedules A, B & C of the plaint and for possession of the properties mentioned 3 in Schedule C with the plaint. The plaintiff pleaded that the original defendant No.1, namely, Asharfee Lal, who was his father, had bad habits. The entire suit property was the self-acquired property of Pyarelal, the grandfather of the plaintiff, who died on 27.08.1978. A Will Deed was executed by the late Pyarelal in favour of the plaintiff and Ramkrishna, bequeathing the entire movable and immovable properties on 29.03.1948. Late Pyarelal approached the revenue authorities to mutate the names of the plaintiff and his brother, namely Ramkrishna and accordingly, their names were entered in the revenue records. The grandfather of the plaintiff purchased a house admeasuring 35 x 35 sq ft. from one Irvu Koshta on 30.07.1955, and another house was purchased on 18.06.1973. Both houses are detailed in Schedule C of the plaint. The plaintiff further pleaded that the partition was effected between the plaintiff and defendant No.1-C, namely Ramkrisha Mishra, and they continued to cultivate the lands falling in their respective shares since 1954. The plaintiff also pleaded that he got 54 acres of land in partition, and Defendant No.1-C also got 54 acres. The lands that fell in the share of the plaintiff have been mentioned in Schedule B of the plaint. The entire property of the late Pyarelal is described in Schedule A.
3. The plaintiff pleaded that in the year 1977-78, he had sown Pink Gram in some part of agricultural land, which was illegally -4- harvested by the original defendant Asharfee Lal, and a report was lodged with the Police Station. The plaintiff also pleaded that Asharfee Lal had no right or interest in the suit property.
4. The original defendant filed a written statement and denied the plaint averments. It was pleaded that the entire suit property is ancestral property and they have an equal right in it.
5. Defendant No.1-C, namely Ramkrishna, filed a separate written statement and denied the fact that there was any partition between them. He further pleaded that the entire property remained in the joint names of the plaintiff and Ramkrishna, and possession was also joint. It was also pleaded that he had sold part of the suit property through sale deeds dated 21.05.1978, 23.11.1987 & 04.12.1987 in favour of 11 persons.
6. Learned Trial Court framed issues and recorded a finding that the suit property was the self-acquired property of Pyarelal; the Will Deed dated 29.03.1948 was the last Will of the late Pyarelal; Will Deed dated 29.3.1948 has been proved in accordance with the law; Pyarelal was capable of executing a Will with respect to the suit property and it would be binding on the original defendant Asharfee Lal; the Will Deed dated 21.05.1978 has not been proved; a partition between the plaintiff and Ramkrishna in the year 1954 has not been proved and parties were cultivating according to the family arrangement. It was also held that it could not be 5 proved that the plaintiff had relinquished his claim over the suit property after accepting gold and silver ornaments in partition.
7. Some of the issues framed by the learned Trial Court were not decided on account of the death of the original defendant, namely Asharfee Lal, on 10.12.1991. The plaintiff had sought the relief of an injunction against Asharfee Lal, and some other reliefs were also sought against him; therefore, those issues were not decided.
8. Learned Trial Court, after due appreciation of oral and documentary evidence, dismissed the suit holding that the late Asharfee Lal had no right over the entire suit property mentioned in Schedule-A and the house mentioned in Schedule-C. It is further held that defendant No.1-C, namely Ramkrishna, was not a party to the suit, and the suit property is yet to be partitioned; therefore, till the proceeding of the partition is completed, the parties would follow the family arrangement. The Learned Trial Court also held that the plaintiff had not sought the appropriate relief.
9. Learned Senior Counsel appearing for the appellant/plaintiff would submit that the learned Trial Court has found the Will Deed dated 29.03.1948 proved as attesting witness, namely Sitaram Tiwari (PW1), was examined, and the contents of the Will Deed were proved. He would further submit that the learned Trial Court has further recorded a finding that there was a family settlement between the parties and the plaintiff as well as Ramkrishna is in -6- possession of their respective shares according to that arrangement, therefore, the learned Trial Court ought to have decreed the suit with regard to part which fell in the share of the plaintiff as described in Schedule-B. He would contend that the defendants could not prove the Will Deed dated 21.05.1978. He would further contend that Asharfee Lal had no right in the suit property, and this issue has been decided in favour of the plaintiff. He would also contend that most of the issues have been decided in favour of the plaintiff, even though the learned Trial Court dismissed the Suit. He would pray to decree the suit. In support of his contentions, he placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Kale and others Vs. Deputy Director of Consolidation and others, AIR 1976 SC
807.
10.On the other hand, Ms. Mishra, Advocate, appearing for respondent No.1B, would oppose the submissions made by Mr. Agrawal. She would submit that the plaintiff failed to prove the factum of partition between the parties by leading clinching evidence. It is contended that the petitioner failed to file a suit for partition before the learned Trial Court, and that was one of the reasons for the dismissal of his claim. It is also contended that the plaintiff is in possession of the lands mentioned in Schedule-B and the house mentioned in Schedule-C on the basis of the family 7 settlement, and it is not necessary that he would get the right of that part after due partition. She would contend that the learned Trial Court has passed a well-reasoned judgment. She would also submit that the appeal deserves to be dismissed.
11.Ms. Shukla, learned Deputy Government Advocate appearing for the State, would support the judgment passed by the learned Court below.
12.I have heard the learned counsel appearing for the parties and perused the record.
13. Point for determination would be:-
(i) Whether the judgment passed by the learned Trial Court is perverse?
(ii) Whether there was a partition between the parties or not?
14.The Hon'ble Supreme Court in the matter of Kale and others (supra), while dealing with the issue of family settlement on the basis of antecedent title and possession in para 10 held as under:-
"10.In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and -8- should not be induced by fraud, coercion or undue influence:
(3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
15.The party claiming enforcement of the family settlement should prove that the family settlement is bonafide and it resolves the family disputes and rival claims by fair and equitable division. The settlement must be voluntary; the members of the family 9 arrangement must have some antecedent title, claim or interest, even a possible claim in the property.
16.In the present case, the plaintiff has claimed the right over his share, i.e. 54 acres of land mentioned in Schedule-B, on the basis of the family settlement and Will Deed. The plaintiff has pleaded that there was a partition between the plaintiff and the late Ramkrishna in the year 1954. The plaintiff had examined Sitaram Tiwari as PW1, who proved the execution of the Will Deed Ex.P/1. Learned Trial Court has found the Will Deed Ex.P/1 proved and that part has not been challenged by the defendants by filing a cross appeal, and thus, it attained finality.
17.Ramesh Kumar Mishra (PW2) affirmed the contents made in the plaint. In cross-examination, he remained firm.
18.Salik Ram (PW3) in cross-examination, particularly in para 12, has admitted the fact that there was a partition between the plaintiff and defendant No. 1C.
19.Ramkrishna examined himself as Defendant No.1. This witness stated that the entire suit property was the self-acquired property of late Pyarelal. He further pleaded that they had the joint possession of the suit property, and it was never partitioned by metes and bounds. He has claimed the right over the entire property, including houses.
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20. The plaintiff has not filed the suit for partition; rather, he has filed suit for declaration of title, permanent injunction, and possession. Until and unless the plaintiff proves the fact of partition on the basis of the family settlement, he cannot claim title as well as possession over the property. It is not proved by the plaintiff that there was a partition by metes and bounds between the plaintiff and the late Ramkrishna.
21. A civil suit was filed in 1979, and the plaintiff was 32 years old at that time. The partition took place in 1954. Thus, in 1954, the plaintiff was 7 years old; therefore, the contention made by the plaintiff that he had cultivated his share of 54 acres since 1954 cannot be accepted. Further, the plaintiff has not pleaded the fact that the partition between the plaintiff and Ramkrishna remained continuing even after the death of Pyarelal (who died on 27.08.1978) and Asharafee Lal (who died on 10.12.1991).
22.The right of defendant No.1-B, namely, Uma Devi, has also not been considered, and she has not been given her share; therefore, on this count also, the family settlement cannot be accepted, as there was no proper settlement between the joint title holders.
23. The Hon'ble Supreme Court in the matter of Kale and others (supra), categorically held that though the family settlement does not require registration, it must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or 11 allotment of properties between the various members of the family. The settlement needs to be voluntary and shouldn't be influenced by fraud, coercion, or undue influence. It is necessary for the members of the family arrangements to possess antecedent titles, claims, or interests.
24.The plaintiff's failure to prove these essential ingredients before the learned Trial Court led to the dismissal of the suit; thus, I do not find the judgment passed by the learned Trial Court perverse, and the plaintiff failed to prove the family settlement in accordance with the law.
25.Accordingly, the appeal fails and is hereby dismissed. No cost(s).
26.A decree be drawn accordingly.
Sd/-
(Rakesh Mohan Pandey) Judge Rekha