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HIGH COURT OF CHHATTISGARH, BILASPUR
NARENDRA KUMAR VYAS, J.
Murari Sahu - Appellant
Versus
Tarni Sahu & Ors. - Respondents
SA No. 187 of 2021
Decided On : 28-02-2022
C.P.C. - Civil Suit - Mitakshara Branch of Hindu Law - Section 100 - Order 20 Rule 18 - [AGRICULTURAL LAND, JOINT FAMILY PROPERTY, PARTITION] - The court discussed the maintainability of the civil suit for partition of joint Hindu family property, the inheritance of the suit land, and the legality of the transfer of ancestral property. The court referred to the provisions of Order 2 Rule 2 C.P.C. and the principles established in Kenchegowda v. Siddegowda and B.R. Patil v. Tulsa Y. Sawkar, emphasizing that a suit for partial partition is maintainable when all joint family properties are not made the subject matter of the suit. The court also cited Alka Gupta v. Narender Kumar Gupta and Gurbux Singh v. Bhoora Lal to highlight the necessity of the defendant pleading the bar under Order 2 Rule 2 and the need for an issue to be framed on that bar. The court concluded that no foundation to attract the provision under Order 2 Rule 2 of the C.P.C. had been led before the trial Court, and no issues had been framed on the submission made by the appellant. The court also referred to Pramod Kumar v. Zalak Singh to emphasize that no substantial question of law was involved in the appeal. The court dismissed the second appeal at the admission stage.
Fact of the Case:
The plaintiff filed a civil suit for declaration of title, partition, and permanent injunction of a 3.43-hectare land, claiming entitlement to a share of the ancestral property. The defendants denied the allegations, contending that the suit was not maintainable due to lack of description of the entire property and the sale of ancestral property. The trial court decreed the suit, granting 1/4 shares to the plaintiff and defendants, and directing initiation of partition proceedings. The first appellate court affirmed the trial court's decision.
Finding of the Court:
The court found that the suit for partial partition of joint family property was maintainable, as all joint family properties were not made the subject matter of the suit. The court emphasized the necessity of the defendant pleading the bar under Order 2 Rule 2 and the need for an issue to be framed on that bar. The court concluded that no foundation to attract the provision under Order 2 Rule 2 of the C.P.C. had been led before the trial Court, and no issues had been framed on the submission made by the appellant. The court also emphasized that no substantial question of law was involved in the appeal and dismissed the second appeal at the admission stage.
Issues: The issues included the maintainability of the civil suit for partition of joint Hindu family property, the inheritance of the suit land, and the legality of the transfer of ancestral property. The court also addressed the necessity of the defendant pleading the bar under Order 2 Rule 2 and the need for an issue to be framed on that bar.
Ratio Decidendi: The court emphasized the principles established in Kenchegowda v. Siddegowda and B.R. Patil v. Tulsa Y. Sawkar, highlighting that a suit for partial partition is maintainable when all joint family properties are not made the subject matter of the suit. The court also cited Alka Gupta v. Narender Kumar Gupta and Gurbux Singh v. Bhoora Lal to emphasize the necessity of the defendant pleading the bar under Order 2 Rule 2 and the need for an issue to be framed on that bar. The court concluded that no substantial question of law was involved in the appeal and dismissed the second appeal at the admission stage.
Final Decision: The court dismissed the second appeal at the admission stage, emphasizing that no substantial question of law was involved in the appeal.
JUDGMENT :
1. Heard on admission.
2. The second appeal has been filed by the appellant/defendant under Section 100 of the C.P.C. against judgment and decree dated 14.07.2021 (Annexure A/1) passed by District Judge, Bemetara, District-Bemetara (C.G.) in Civil Appeal No. 08A/2020 (Murari Sahu & others v. Tarni Sahu & others) affirming the judgment and decree passed by Second Civil Judge Class-II, Bemetara, District-Bemetara (C.G.) in Civil Suit No. 01-A/2017 on 24.12.2019 (Annexure A/2).
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 1-A/2017 which was filed for declaration of title partition and permanent injunction.
4. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed Civil Suit No. 01-A/2017 before Second Civil Judge Class-II, Bemetara for declaration of title, partition of suit land situated at village Berlakala, Tahsil Berla, District Bemetara measuring about 3.43 hectare and for grant of permanent injunction. It has been contended that the plaintiff and defendants are Hindus and they are governed by Mitakshara Branch of Hindu Law and their grandfather of Ludu owned of the land situated at Village-Berlakala bearing Khasra Nos. 154, 395, 425, 490, 492, 488/5, 428, 652, 971/1 & 649 (total 10 plots total area admeasuring 3.43 Hectare) area admeasuring 1.75, 0.04, 0.01, 0.15, 0.16, 0.32, 0.03, 0.45, 0.02 & 0.50 Hectare respectively. After death of Ludu, the ancestral property was inherited to Moti & Bishambhar, sons of Ludu.
5. It has been further contended that plaintiff, defendant No. 1, defendant No.4 are the successors of Bisambhar and they are also entitled to inherent movable and immovable property of Bisambhar. The defendant No. 1 considering the fact that his father Bisambhar was suffering from paralysis, transferred the ancestral property in his name. His father expired in the year 2011. It has been further averred in the plaint that land bearing plot Nos. 971/2 area 0.02 Hectare, Khasra No. 154/1 area 0.75, Khasra No. 154/2, 395, 425, 428, 488/5, 490, 492, 649 & 652 area admeasuring 1.00, 0.04, 0.01, 0.03, 0.32, 0.15, 0.16, 0.50 & 0.45 respectively (total Khasra Nos. 11 area 3.43 Hectare) are also recorded in the name of Bisambhar, therefore, defendant No. 1 is entitled for 1/3rd share i.e. 1.14 Hectare and defendant No. 4 is also entitled for 1/3rd share i.e. 1.14 Hectare on partition. The plaintiff has requested for partition in December, 2016, which has been denied by the defendants, which has necessitated her to file the civil suit before the trial Court for grant of partition, possession and permanent injunction.
6. Defendants No. 1 to 3 have filed their written statement denying the allegation mentioned in the plaint contending that there is no description of the entire property, therefore, the civil suit for partition of joint Hindu family property is not maintainable. It has also been stated that Purin Bai, wife of Bisambhar, has not been arrayed, who is necessary party as she is also successor of movable and immovable property and in her absence, the suit is not maintainable. It has also been pleaded that father of defendant No. 1 has sold the property on 14.01.2011 to the defendants No. 2 and 3 when he was physically and mentally fit and prayed for rejection of the suit.
7. During pendency of this suit, widow of Bisambhar i.e. defendant No. 4-Hemin Sahu has been arrayed as defendant No. 4 on 20.01.2017. She has filed her written statement reiterating the same stand taken by defendant No. 1 and would submit that the plaintiff is not entitled for 1/3rd share of the suit property and prayed for rejection of the suit.
8. Learned trial Court after appreciating the pleadings of the parties, has framed as many as nine issues. Issue Nos. 1 & 2 are necessary issues for deciding issue raised in this appeal, therefore, they are being reproduced below:- The relevant issues framed by the trial Court are as under:-
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