AFR HIGH COURT OF CHHATTISGARH, BILASPUR FA No. 157 of 2020 Dr. Chandrakant Bagh, Aged About 62 Years, S/o Late Dr. Ramchandra Bagh R/o Bus Stand Rajim Road, Abhanpur, Tahsil Abhanpur, District Raipur Chhattisgarh.

---- Appellant Versus

1. Arvind Bagh, Aged About 61 Years, S/o Late Dr. Ramchandra Bagh, R/o Near Shiv Mandir, Gali No. 02 , Anand Nagar , Raipur , Tahsil And District Raipur Chhattisgarh.

2. Omprakash Ahuja, Aged About 55 Years, S/o Late Kunwarmal Ahuja R/o 30 Anand Nagar, Raipur, Tahsil And District Raipur Chhattisgarh.

3. Smt. Neeta Athwani, Aged About 46 Years, W/o Shankar Athwani R/o Near Kanhaiya Cloth Stores, Sarthi Chowk, Lakhe Nagar, Raipur, Tahsil And District Raipur Chhattisgarh.

4. Mohit Athwani, Aged About 24 Years, S/o Shankar Athwani R/o Near Kanhaiya Cloth Stores, Sarthi Chowk, Lakhe Nagar, Raipur, Tahsil And District Raipur Chhattisgarh.

5. Prakash Bagh, Aged About 65 Years, S/o Late Dr. Ramchandra Bagh R/o Behind Usha Building, Tikrapara, Bilaspur, Tahsil And District Bilaspur Chhattisgarh.

6. Smt. Vasanti Barhad Pandey, Aged About 58 Years D/o Late Dr.

Ramchandra Bagh Address C/o Officer Commercial Tax, Circle No. 07, Krishna Glory Nai Duniya Building, Sai Nagar Raipur, Tahsil And District Raipur Chhattisgarh.

---- Respondents ___________________________________________________

For appellant – Shri Manish Upadhyay, Advocate.

For respondent No.1- Shri Rishikant Mahobia, Advocate.

For respondent No.2-Shri Prafull N. Bharat, Sr. Advocate with Shri Akash Pandey, Advocate.

For respondents No.3 & 4 – Shri Arvind Shrivastava, Advocate.

For respondent No.5- Shri Shivam Mishra, Advocate appears on behalf of Shri Akhilesh Kumar, Advocate.

For respondent No.6 – Shri T.K. Jha, Advocate with Shri Tapan Kumar Chandra, Advocate.

Hon'ble Shri Justice Goutam Bhaduri &

Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board Per Goutam Bhaduri, J.

12/03/2024 Heard.

1. Instant appeal is against the judgment and decree dated 07/02/2020 passed by the District Judge, Raipur in Civil Suit No. 60-A/2017 whereby suit preferred by the plaintiff/appellant claiming partition and cancellation of the sale deed was dismissed. Being aggrieved by such order, the present appeal.

2. Brief facts of this case are that, one Dr. Ramchandra Bagh, the father of defendant No.1 namely Arvind Bagh, defendant No.5 Prakash Bagh and defendant No.6 Smt. Vasanti Barhad Pandey purchased a property i.e. plot no.31 comprised in khasra No.305/2 admeasuring 80x50 sq.ft. by a sale deed dated 25/01/1969 (Ex.P-15). According, to the plaintiff, the house was constructed over the said plot in 1971. Subsequently, Dr. Ramchandra Bagh died intestate on 17/06/1977. Thereafter, on the said house, Usha Bagh wife of Dr. Ramchandra Bagh alongwith his son Arvind Bagh were residing. During her life time, Usha Bagh executed a sale on 19/10/2015 wherein Arvind Bagh, one of the son gave his consent. The sale deed was executed in favour of defendant No.2 Omprakash Ahuja, defendant No.3 Neeta Athwani, defendant No.4 Mohit Athwani. Usha Bagh died on 29/12/2016. After her death, the plaintiff sent a notice for partition but eventually having not been acceded, after exchange of notice, civil suit was filed on 25/11/2017 whereby Dr.

Chandrakant Bagh demanded ¼ share and for appointment of a commissioner to carry out partition. Further the prayer was also to the extent that sale deed dated 19/10/2015 be declared null and void. The prayer was also made that permanent injunction be granted in favour of the plaintiff that the nature of property should not be changed.

3. Arvind Bagh, defendant No.1 one of the brother denied the averments of plaint and stated that the entire suit property was bequeathed in his favour by Usha Bagh by a WILL and they were residing in the said house without any protest, as such, the plaint was liable to be rejected.

4. The purchasers No.2 to 4 namely Omprakash Ahuja (D-2), Smt. Neeta Athwani (D-3) & Mohit Athwani (D-4) denied the allegations of the plaint, however, the