HIGH COURT OF CHHATTISGARH AT BILASPUR S.A. No. 481 of 2015 Manohar Versus Shivkumar and Others _____________________________________________________

C A V JUDGEMENT Post for pronouncement of the judgement dated 02 /07/2024 (Arvind Kumar Verma)

Judge

02 /07/2024 AFR HIGH COURT OF CHHATTISGARH, BILASPUR JUDGMENT RESERVED ON 16.04.2024 JUDGMENT DELIVERED ON 02 .07.2024 SA No. 481 of 2015 • Manohar S/o. Ramcharan, Aged About 75 Years R/o Vill-

Changori, Tah. Janjgir, Dist- Janjgir - Champa, Chhattisgarh, Present Address- Vill- Khoksa, Tah. Janjgir, Dist- Janjgir -

Champa, Chhattisgarh ---- Appellant Versus

1. Shiv Kumar S/o Nityanand, Aged About 70 Years 2. Ramkumar S/o Nityanand, Aged About 68 Years 3. Devkumar S/o Nityanand, Aged About 58 Years

4. Laxmi Kumar S/o Nityanand, Aged About 63 Years

5. Pramod Kumar S/o Nityanand, Aged About 59 Years 6. Ramesh Kumar S/o Nityanand, Aged About 55 Years 7. Kamlesh Kumar S/o Nityanand, Aged About 51 Years

8. Umesh Kumar S/o Nityanand, Aged About 45 Years All are R/o Vill- Changori, Tah. Akaltara, Dist- Janjgir - Champa, Chhattisgarh

9. Savitri Devi D/o Nityanand, Aged About 73 Years W/o Chintamani Pandey, Present Address- Daroga Para, Near Gudhidai Temple, Raigarh, Tah. And Dist- Raigarh, Chhattisgarh, 10. Brihaspati Devi D/o Nityanand, Aged About 61 Years W/o Ramnivas Pandey, R/o Vill- Konar, P. O. Kutighat, Tah. Akaltara, P. S. Mulmula, Dist- Janjgir-Champa, Chhattisgarh, 11. Mandavi D/o Nityanand, Aged About 53 Years W/o Indrajeet Pathak, R/o Vill- Khaira, Chilhati, Tah. Seepat, Dist- Bilaspur, Chhattisgarh, 12. Ahilya Bai (Died And Deleted) In Compliance Of Hon'ble Court Order Dated 04.03.2024.

13. State Of Chhattisgarh, Through Collector, Janjgir, Dist- Janjgir -

Champa, Chhattisgarh ---- Respondents For Appellant : Shri H.V.Sharma, Advocate For Respondent Nos. 1 to 11 : Shri Somnath Verma, Advocate For Respondent No.13/State : Shri Pratik Tiwari, PL Hon’ble Shri Justice Arvind Kumar Verma

C A V Judgment

This second appeal under Section 100 of the CPC has been preferred by the sole plaintiff/appellant herein against the impugned judgment and decree passed by the learned First Appellate Court in Civil Appeal No. 21-A/2013 (Annexure A/1) whereby allowed the appeal filed by the respondent/defendant by setting aside the judgment and decree of the trial court dated 30.08.2010 passed by the Second Civil Judge Class-1 Janjgir, District Janjgir-Champa in Civil Suit No. 999-A/2005.

2. The appeal was admitted by formulating the following substantial questions of law:

“Whether the finding of the First Appellate Court regarding earlier partition is perverse?”

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]

3. The facts necessary for disposal of the present appeal in brief are that the appellant/plaintiff had instituted a suit before the trial Court which was registered as Civil Suit No. 999-A/2005 for possession of the suit land as per Schedule ‘B’ of the plaint or partition of the joint family property as mentioned in Schedule ‘A’ of the plaint and separate possession of half share should be given to the plaintiff.

4. The plaintiff has obtained the suit land vide order dated 04.08.1982 passed by the Tehsildar in a Revenue Case No. 3-A/27/1979-80 but the defendant Nityanand (deceased) managed to mutate the land in his name in revenue records along with his share detailed in Schedule C of the plaint. It is admitted fact that the plaintiff and defendant Nityanand (deceased) are real brothers and the original defendant (Nityanand) died during the pendency of the appeal and the present respondents are the legal heirs of the defendant Nityanand.

5. Defendant Nityanand denied the averment of the plaint and contended that the earlier order for partition has been set aside in appeal No.1-A/27/1982-83 before Sub Divisional Officer, Janjgir vide order dated 30.12.1983 and further contended that in the proceedings u/s. 145 Cr.P.C. before the