Chattisgarh High Court
Janaki Bai vs Ramki Bai 22 Crmp/736/2020 Deepak … on 21 May, 2020 1

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 19.05.2020
Judgment delivered on: 21.05.2020

Second Appeal No.108 of 2008

1. Janaki Bai, aged 70 years, W/o. Arjun Yadu, resident
of village Borsi, Tahsil Bhatapara, Distt. Raipur
(CG)
2. Bimla Bai, wife of Arjun Yadu, resident of village
Parasthetha, Tah. Baloda Bazar, Distt. Raipur
3. Shatruhan Yadu (died) thorugh his LR’s:
(i) Devendra Kumar Yadu S/o Late Shatruhan Yadu,
aged about 21 years,
(ii) Savitri Yadu Wd/o. Late Shatruhan Yadu, aged
about 47 years,
(iii) Sagar Kumar Yadu S/o Late Shatruhan Yadu, aged
about 13
(iv) Sandeep Kumar Yadu S/o Late Shatruhan Yadu,
aged about 11 years,
(v) Ku. Rinu Yadu D/o Late Shatruhan Yadu, aged
about 17 years,
Appellant No.III, IV, V through Natural Guardian
their namely mother Savitri Yadu Wd/o Late
Shatruhan)
All R/o Village – Borsi, (Dhh), Tah.­Bhatapara,
Dist. Balodabazar­Bhatapara (CG)
4. Kailash son of Nathuram Yadu (Minor) through natural
guardian – mother Heerabai wife of Nathuram Yadu
5. Lallu son of Nathuram Yadu (Minor) through natural
guardian mother – Heerabai Yadu wife of Nathuram
Yadu
6. Heera Bai wife of Nathuram Yadu,
S.No.4 to 6 R/o. Vill Borsi, RNM Nipaniya, Tah.
Bhatapara, Distt.Raipur (CG)
7. Rukmani Bai D/o. Nathuram Yadu, R/o. vill. Raipur,
Tah. Bhatapara, Distt. Raipur
8. Igla Bai D/o. Nathuram, R/o. vill.Kosmanda, Tah.
Bhatapara, Distt. Raipur
9. Rewati Bai D/o. Naturam Yadu, resident of village
Datrengi, Tah. Bhatapara, Distt. Raipur
10. Ratna Bai D/o. Nathuram Yadu, resident of
village Datrengi, Tah. Bhatapara, Distt. Raipur (CG)

­­­­ Appellants/Defendants
2

Versus

1. Ramki Bai Wd/o Late Ramji Yadu, aged about 58 years,
2. Puniya Bai daughter of Dhaniram Yadu, aged about 55
years,
Both are resident of village Borsi PHN 22, R/o.
Vill. Ponsari/Bosri, Tah. Bhatapara, Distt. Raipur
(CG)
­­­­ Respondents/Plaintiffs
3. The State of Chhattisgarh through the Collector,
Distt. Raipur (CG)

­­­­ Respondents

For Appellants/Defendants: Ms Sharmila Shinghai, Advocate
For Res.No.1&2/Plaintiffs: Mr.H.B.Agrawal, Senior
Advocate with with Mrs.Preeti
Yadav, Advocate
For Res.No.3/State : Mr.Rahul Jha, Govt.Advoacte

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Judgment

1. The substantial question of law involved, formulated

and to be answered in this defendants’ second appeal

is as under: ­

“Whether a decree for permanent injunction
against the appellants/defendants could be
passed in view of the specific pleadings and
admission by the respondents/plaintiffs that
they have sold the suit land prior to the
date of suit”?

(For the sake of convenience, parties would be
referred hereinafter as per their status shown
in the plaint before the trial Court.)

2. The following genealogical tree would demonstrate

the relationship among the parties:­
3

Parasram (Dead 100 Years ago)

Parasram Dhaniram Baliram
(Dead 50 Years ago) (Dead 25 Years ago) (Dead 32 Years ago)

Wife Mst. Ramhin First Wife
Bai Mst. Pancho Bai Son
Shivram
(Dead 12 Years ago) Lalji
Arjun (Defendant)
Second Wife
Mst. Ramhin Bai
(Dead 30 Years ago)

Son Ramji Mst. Puniya Bai
(Dead 50 Years ago) (Plaintiff)

Widow Mst. Ramki Bai
(Plaintiff)

3. The suit property was originally held by one

Parasram. Parasram had three sons namely Atmaram,

Dhaniram and Baliram. Plaintiff No.1 is widow of

Dhaniram’s second wife’s son and plaintiff No.2 is

daughter of Dhaniram, whereas original defendant

No.1­Arjun, who died during pendency of first

appeal, was son of Atmaram. Two plaintiffs filed a

suit against defendant No.1 only for permanent

injunction stating inter­alia that the suit land

bearing Khasra No.15 area 6.134 hectare fell in

their share. They are bhumiswami and possession
4

holders of the said land, which they got in

partition pursuant to the order of the Tahsildar

dated 9.9.93 (Ex.P­1) and since then, they are

cultivating the said land, but in the month of

March, 1997, defendant No.1 threatened them not to

do the agricultural work and not to alienate the

suit property leading to filing of suit only for

permanent injunction.

4. Defendant No.1 filed his written statement and

denied the averments made in the plaint stating

inter­alia that Dhaniram’s first wife is Pancho Bai,

who has executed a Will (Ex.D­8) in his favour and

as such, he is title­holder of the suit land and

the plaintiffs have no right and title over the suit

land and prayed for dismissal of the suit.

5. The trial Court after appreciating oral and

documentary evidence available on record, by its

judgment and decree dated 24.1.2006, partly decreed

the suit holding that the plaintiffs are in

possession of part of suit land pursuant to the

order of the Tahsildar, Bhatapara dated dated 9.9.93

(Ex.P­1) and as such, plaintiff NO.1 is entitled to

hold 3.2659 hectare of land and plaintiff NO.2 is

entitled to hold .8169 hectare of land and since
5

they are in possession of the said land, therefore,

they are entitled for permanent injunction. Being

aggrieved and dissatisfied with the judgment and

decree of the trial Court partly dismissing the

suit, the plaintiffs filed first appeal before the

first appellate Court stating inter­alia that the

trial Court ought to have granted decree in toto and

refusing the decree to rest of suit land is perverse

and contrary to record. The first appellate Court by

the impugned judgment and decree allowed the appeal

and decreed the suit of the plaintiffs in toto,

against which, this second appeal under Section 100

of the Code of Civil Procedure, 1908 has been filed

by the appellant/legal representatives of defendant

No.1, in which, substantial question of law has been

formulated and set­out in the opening paragraph of

this judgment.

6. Ms.Sharmila Shinghai, learned counsel for the

appellants/legal representatives of original

defendant No.1, would submit that since the

plaintiffs have already alienated the suit property

prior to filing of the suit, therefore, the suit

could not have been decreed in toto by the first

appellate Court and therefore, the judgment and
6

decree of the first appellate Court deserves to be

set aside.

7. Mr.H.B.Agrawal, learned Senior Counsel with

Mrs.Preeti Yadav, learned counsel for respondents

No.1 and 2/plaintiffs, would submit that the

defendant has accepted the judgment and decree of

the trial Court partly decreeing the suit and did

not challenge the same by filing appeal and in an

appeal filed by the plaintiffs, the first appellate

Court has rightly held that Will (Ex.D­8) executed

by Pancho Bai in favour of defendant No.1­Arjun has

not been proved in accordance with Section 63(c) of

the Indian Succession Act, 1925 read with Section 68

of the Indian Evidence Act, 1872, as such, the

plaintiffs were entitled for decree in toto as

admittedly the suit property fell in share of the

plaintiffs by partition vide Ex.P­1 and the first

appellate Court rightly granted decree in toto in

their favour.

8. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and went through the records with utmost

circumspection.
7

9. The trial Court has clearly recorded a finding that

Pancho Bai, widow of Dhaniram, has executed a Will

(Ex.D­8) in favour of defendant­Arjun in respect of

entire property, whereas she could have executed a

Will only to the extent of her share in the suit

property. The first appellate Court has recorded a

finding that Will (Ex.D­8) executed by Pancho Bai in

favour of defendant­Arjun is not proved in

accordance with Section 63(c) of the Indian

Succession Act read with Section 68 of the Indian

Evidence Act and that finding qua Will has attained

finality as the defendant has not questioned that

part of finding in this second appeal filed before

this Court and consequently no substantial question

of law has been proposed or formulated and only

submission has been raised that the plaintiffs have

alienated the suit property much prior to filing of

the suit, therefore, the plaintiffs are not entitled

for decree for permanent injunction.

10. A careful perusal of the record would show that the

plaintiffs have come out with a clear case that sale

deed has been executed in favour of some person with

respect of part of suit land, but still they are in

physical/actual possession of the suit land, whereas
8

in written statement the defendant has clearly

stated that said sale deeds are null and void and it

does not confer any title, but the fact remains that

sale deeds have been executed though sale deeds have

not brought on record and in view of that, the trial

Court did not frame any issue and the defendant did

not raise any plea in that regard before the first

appellate Court and for the first time this plea has

been raised before this Court.

11.The first appellate Court has reached to the

conclusion that the plaintiffs are in possession of

the suit land pursuant to the order of partition

made by the Tahsildar, Bhatapara vide Ex.P­1 under

Section 178 M.P. Land Revenue Code, 1959 proceeding.

Finding recorded by the trial Court and the first

appellate Court that the plaintiffs are in

possession of entire property and possession is

legal and lawful is finding of fact based on

evidence available on record. It is not the case of

the defendant that since the plaintiffs have already

alienated the suit property and delivered peaceful

possession thereof, therefore, they are not in

possession of the suit property and consequently,

the plaintiffs are not entitled for permanent
9

injunction. Finding recorded by two Courts below

that the plaintiffs are in lawful possession of the

suit property and therefore, they are entitled for

permanent injunction is absolutely correct finding

recorded after appreciation of oral and documentary

evidence available on record. It is neither perverse

nor contrary to record. The substantial question of

law is answered in favour of the plaintiffs and

against the defendant.

12. Accordingly, I do not find any merit in this

second appeal. The second appeal being devoid of

merit is liable to be and is hereby dismissed

leaving the parties to bear their own cost(s).

13. Decree be drawn­up accordingly.

Sd/­

(Sanjay K. Agrawal)
Judge
B/­

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