Santosh Kumar Mishra vs Anil Kumar Mishra

Heard on admission.

This appeal has been preferred by the plaintiff – Santosh Kumar Mishra under Section 100 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the judgment and decree dated 20.04.2018 passed by the District Judge, Bemetara (C.G.) in Civil Appeal No.18-A/2017, whereby, the learned appellate Court, while affirming the judgment and decree dated 20.07.2017 passed by the Civil Judge, Class-2, Saja in Civil Suit No.7-A/2015, has dismissed the appeal. The parties to this appeal shall be referred hereinafter as per their descriptions before the Courts below.

Briefly stated the facts of the case are that the plaintiff instituted a suit claiming partition and injunction with regard to the property in question bearing Khasra No.163, 147, 145 and 160 admeasuring 0.76 hectare, 0.34 hectare, 0.85 hectare and 0.33 hectare, respectively, total admeasuring 2.28 hectare as described in plaint Schedule –'C' by submitting, inter alia, that the property in question, which was held by his father Radheshyam along with others were the ancestral properties and in 1998, an oral partition was effected by him, whereby the suit property has fallen in his share. It is pleaded that though an oral partition was made as such, but the revenue papers are still shown to be recorded in their joint names and that after the death of father Radheshyam on 18.02.2010, the Namantaran Panji was recorded in the name of plaintiff and defendants No. 1 to 4 and while taking undue advantage of it, a proceeding was initiated by defendants No. 1 to 4 for partition under Section 178 of the Chhattisgarh Land Revenue Code, 1959 (for short, the Code of 1959) before the Tehsildar, Saja, where the said authority has passed the order of partition on 24.11.2014 in Revenue Case No.22-A/27/2013-14, which was reversed by the Collector vide its order dated 28.11.2014 in Case No. 6-A/27/2014-15. It is pleaded further that since the dispute with regard to question of title arose before the Revenue Authorities, therefore, he has been constrained to institute the suit in the instant nature.

While denying specifically the factum of oral partition as claimed by the plaintiff, it was pleaded by the defendants that the property in question was the ancestral property and after the death of their father Radheshyam, it was recorded in their joint names. The claim as made is, therefore, liable to be dismissed.

From perusal of the averments made in the plaint, it appears that the plaintiff is claiming his right over the property in question as described in plaint Schedule – 'C' on the basis of an oral partition which was said to have been effected by his father Radheshyam in 1998 and in order to establish the same, a registered deed of sale, dated 09.04.2001 and a deed of “Batwaranama” marked as Ex.P-7 and Ex.P-8, respectively were produced on record. However, a bare perusal of the said document (Ex.P.8) would show that it was effected amongst Radheshyam and his sons, namely, Santosh Kumar and Anil Kumar and they were shown to be as Party No.1, 2 & 3 respectively, but the signatures of said Santosh Kumar and Anil Kumar did not find place therein. That apart, the signature of different persons, namely, Ganeshram Nishad, Channulal and Netram are depicted as Party No.1, 2 and 3 respectively in the second page of it. The said document (Ex.P.-8) thus appears to be a suspicious one which was executed by father Radheshyam on 19.06.1998. Pertinently to be noted here further that the alleged document has been executed in presence of the witnesses, namely, Jagtaran Banjare and Ramjee, but for the reasons best known to the plaintiff, they were not examined in order to prove the same. In absence thereof, no reliance, therefore, could be placed upon it in order to arrive at a conclusion that the partition was effected orally by father Radheshyam in 1998, as claimed by the plaintiff. In so far as the registered deed of sale (Ex.P-7) is concerned, it appears that though it was mentioned therein as reflected from its “Note”, that the part of the property bearing Khasra No.279 admeasuring 0.40 acre was sold with the consent of said Anil Kumar while mentioning therein that it would be presumed to be fallen in his share, but, merely on such an endorsement, particularly, when the oral partition was not found to have been established while considering the deed of “Batwaranama” (Ex.P.8), no reliance, therefore, could be placed upon it as well. Consequently, the Courts below upon due and proper appreciation of the evidence led by the parties, have rightly dismissed the plaintiff's claim by holding that no partition as such was ever made orally in 1998 and I, therefore, do not find any question of law, much less the substantial questions of law which arise for determination in this appeal.

The appeal, being devoid of merit, is accordingly dismissed at the admission stage itself.

No order as to costs.