Chattisgarh High Court
Shankar Lal vs Dhanmat Bai 14 Fa/4/2008 Panchuram ... on 24 July, 2019
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 03-07-2019
Judgment delivered on 24-07-2019
FA No. 103 of 2005
1. Shankar Lal S/o Dataram Sahu, Aged About 60 Years R/o Vill.
Dongari, Tah. Janjgir, District Janjgir-Champa, Chhattisgarh.
2. Smt. Shyama Bai W/o Shri Shankar Lal Sahu, Aged About 55
Years R/o Vill. Dongari, Tah. Janjgir, District Janjgir-Champa,
Chhattisgarh.
3. Bhagirathi S/o Shri Shankar Lal Sahu, Aged About 30 Years
R/o Vill. Dongari, Tah. Janjgir, District Janjgir-Champa,
Chhattisgarh.
4. Smt. Gyanprabha W/o Shri Bhagirathi Sahu, Aged About 27
Years R/o Vill. Dongari, Tah. Janjgir, District Janjgir-Champa,
Chhattisgarh.
---- Appellants/plaintiffs
Versus
1. Dhanmat Bai Wd/o Late Bisahu Ram Yadav, Aged About 60
Years R/o Village Dongari, Chhattisgarh
2. Ramadhar S/o Late Bisahu Ram Yadav, Aged About 32 Years
R/o Village Dongari,, Chhattisgarh
3. Mus. Anar Bai W/o Ramadhar Yadav, Aged About 28 Years
R/o Village Dongari, Chhattisgarh
4. Mus Sambha Bai W/o Shalendra Yadav, Aged About 21 Years
R/o Akaltara, Chhattisgarh
5. Manharan Lal S/o Shri Mohit Ram Yadav, Aged About 45
Years R/o Akaltara, Chhattisgarh
6. Smt. Galo Bai W/o Shri Manharan Lal Yadav, Aged About 24
Years R/o Akaltara, Chhattisgarh
7. Nuniya Bai D/o Shri Santram Yadav, Aged About 20 Years R/o
Akaltara, Chhattisgarh
8. Deleted Johan
9. Deleted Nawagavheen
10. Lalheen Wd/o Late Panchram Yadav, Aged About 55 Years
R/o Dongari, Chhattisgarh
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11. Ramgopal (Dead ) As Per Court Order Dt. 09-05-2019, 16-
05-2019., Chhattisgarh
12. Dauram (Dead ) As Per Court Order Dt. 09-05-2019, 16-05-
2019., Chhattisgarh
13. Dashrath S/o Budhu Ram Sahu, Aged About 40 Years R/o
Dongari, Chhattisgarh
14. Vijaya Bai W/o Dashrath Bareth, Aged About 35 Years R/o
Dongari, Chhattisgarh
15. Kushal S/o Shri Maniya Bareth, Aged About 24 Years R/o
Dongari, Chhattisgarh
16. Budhwa S/o Chamra Bareth, Aged About 20 Years R/o
Dongari, Chhattisgarh
17. Sohan S/o Makhan Yadav, Aged About 23 Years R/o
Birgahani, Chhattisgarh
18. Mankunwar W/o Shri Sadhram Yadav, Aged About 50 Years
R/o Pahariya, Tah. Janjgir, Distt. Janjgir-Champa,
Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
19. Firtu S/o Sadhram Yadav, Aged About 25 Years R/o
Pahariya, Tah. Janjgir, Distt. Janjgir-Champa, Chhattisgarh,
District : Janjgir-Champa, Chhattisgarh
20. Firangi S/o Shri Sadhram Yadav, Aged About 25 Years R/o
Pahariya, Tah. Janjgir, Distt. Janjgir-Champa, Chhattisgarh,
District : Janjgir-Champa, Chhattisgarh
21.Purushottam Dead Through Lrs
21.1 - Sadhram Yadav S/o Not Known To The Appellants
Aged About 65 Years
21.2 - Mankunwar W/o Sadhram Yadav Aged About 50
Years . Both are residents of village Pahariya, Tahsil Janjgir,
Dist. Janjgir-Champa (CG)
---- Respondents/defendants
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For appellants : Mr. Rajeev Shrivastava, Advocate.
For respondents : Mr. Ravindra Sharma and
Mr. Amiyakant Tiwari, Advocates.
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SB: Hon'ble Shri Justice Ram Prasanna Sharma
CAV JUDGMENT
3
1) This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 31-3-2005 passed by 3rd Additional District Judge (FTC) Janjgir, Dist. Janjgir-Champa (CG) in Civil Suit No. 4-B/2004 wherein the said court dismissed the suit filed by the appellant/plaintiffs for compensation to the tune of Rs.69,500/-.
2) As per version of appellants/plaintiffs, suit was filed on the ground that the appellants are owners of land bearing survey Nos. 1962/1, 1962/2, 1957/2 and 1957/1 area measuring 9.86 acres situated at village Dongri and respondents have harvested the same without any authority of law. Appellants are members of joint family which is lead by appellant No.1/plaintiff No.1 and others are dependant on him. His status in the family is of Karta. The suit land was earlier owned by one Ram Sarkar. There was dispute between Ram Sarkar and other persons and in a civil proceeding possession of suit land was delivered to Ram Sarkar. After death of Ram Sarkar his legal heirs came in possession but in revenue records name of other person was also there along with Ram Sarkar. After compromise, 9.36 acres of land was acquired by heirs of Ram Sarkar. On 30-6-1991 the appellants purchased the land from the heirs of Ram Sarkar and cultivated the same. However, on 15-11-1994 the respondents/defendants harvested the crop, 4 that is why suit was filed but the trial court dismissed the same contrary to factual matrix and legal aspect of the matter.
3) Learned counsel for the appellants would submit as under:
i) The trial court committed error in holding that possession of suit land was not given to the appellants in compliance of registered sale deed.
ii) The trial court ought to have held that if there was no partition of suit property, the appellants stepped into the shoes of the joint owner of the property.
Iii) The trial Court has incorrectly disbelieved the evidence available on record, therefore, finding of the trial Court is liable to be reversed.
4) On the other hand, learned counsel for respondents No. 2, 3 and 4 would submit that the finding of the trial court is based on proper marshaling of the evidence which is not liable to be interfered with while invoking jurisdiction of the appeal.
5) I have heard learned counsel for the parties and perused the record in which judgment and decree has been passed.
6) The first question for consideration of this court is whether the appellants have purchased the land from the recorded owner 5 and whether possession was delivered to them after execution of sale deed.
7) Appellants side examined Shankar (PW/1), Santilal (PW/2), Narayan (PW/3) and Jageshwar Prasad (PW/4). As against this, respondents side examined Ramadhar (DW/1) but he has not been cross examined. As per evidence of appellants witnesses, the land was purchased in the name of Bhagirathi, Shyama Bai and Gyanprabha who are appellants/plaintiffs in the present case, but all the three have not been examined before the trial Court.
The person who executed the sale deed in their favour is also not examined to establish that possession was delivered to them by the sellers. Shankar Lal who appeared before the trial Court as PW/1 admitted (para 10) that there was dispute regarding land between heirs of Ram Sarkar and Bhokuram. He further admitted that respondent No.1 - Dhanmat Bai and her son were not present at the time of execution of sale deed and they have not purchased the share of Bisahu. Respondent No.1 Dhanmat Bai is wife of Bisahu Ram and this witness has admitted that he has not purchased the share of Bisahu Ram. He further stated that he has not produced any document regarding partition of land between shareholders of the property (para 12).
8) Shantilal (PW/2) deposed before the trial Court that the possession was not delivered to appellant Shankar and 6 respondent No.1 Dhanmati and Ramadhar were in possession of land which was owned by Bisahu (Para 14). Jageshwar Prasad (PW/4) deposed before the trial Court that husband of respondent No.1 Dhanmat Bai namely Bisahu was shareholder with Ram Sarkar and appellant Shankar has purchased the land from Ram Sarkar and his son and he has not purchased the land from Bisahu. He admitted that respondent No.1 Dhanmat Bai and her son were in possession of land owned by Bisahu (para 7).
9) From the entire evidence of appellants side, it is established that respondent No.1 Dhanmat Bai and Ramadhar were shareholders with Ram Sarkar and they were in possession of their land. There is nothing on record to show that partition took place between Ram Sakar, Bisahu and other shareholders, therefore, respondent No.1 Dhanmat Bai had all the right to remain in possession of land which is joint property or which is property of her share. The appellants were under obligation to prove that property which was purchased by the appellants was partitioned between Ram Sarkar and other share holders and property which was sold was within share of Ram Sakar, but that fact is not proved through cogent evidence. Even purchasers who are appellants No.2, 3 and 4 did not enter into witness box to state that the person who sold the property was sole owner of the property and he handed over possession to these appellants after 7 execution of sale deed. In absence of proof the trial Court is right in holding that appellants were not legally in possession after purchasing the land in question. Unless right is established it cannot be held that respondent No.1 Dhanmat Bai and persons acting on her behalf have no right to enter into the land and cultivate the same, therefore, the trial Court is right in holding that no compensation can be awarded against respondent No.1 Dhanmati Bai and other persons who have entered into the land. The appellants are not entitled for any compensation
10) As a fallout and consequence of the aforesaid discussion, the appeal is held to be devoid of merit and same is liable to be dismissed. Accordingly, decree is passed in favour of respondents and against the appellants as under:
(i) The appeal is dismissed with cost.
(ii) Appellants to bear the cost of respondents
through out.
(iii) Pleader's fee., if certified, be calculated
as per Schedule or as per certificate
whichever is less.
(iv) A decree be drawn up accordingly.
Sd/-
(Ram Prasanna Sharma)
JUDGE
Raju