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:
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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
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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
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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
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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.
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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
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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
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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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