CAV Judgment

1. Heard on admission.

2. This Second Appeal under Section 100 of Civil Procedure Code, has been filed by the defendants against the judgment and decree dated 16.10.2012 passed by 5th Additional District Judge, Durg District Durg in Civil Appeal No. 1-A/2011 affirming the judgment and decree dated 07.01.2004 passed by Fifth Civil Judge Class-II Durg District Durg in Civil Suit No. 68-A /2002.

3. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 68-A /2002 before the trial Court.

4. The necessary facts for the disposal of the present appeal, in short, are that the plaintiffs have instituted a civil suit for declaration of title, partition and possession before the learned Civil Judge Class-2 Durg, mainly contending that plaintiffs and defendants No. 1 to 8 have joint property situated at village Patan, P.H.No. 30, R.N.M, Tahsil Patan, District Durg, khasra No. 1471 area 0.23 hectares. It is contended that defendant No.1 (Mehattar) has filed an application before Tahsildar Patan for mutation his name only and for deletion of the name of other co-owners from the record as partition has not been done between them which was allowed on 05.01.1995. Against that the plaintiffs and defendant No. 7 and 8 have filed an appeal before Sub Divisional Officer, Patan which was allowed and remanded the case for deciding afresh. Tahsildar, Patan vide its order dated 03.02.1997 has recorded a finding that the property belonged to Mehattar/defendant No.1 only, whereas it is a joint property, in which plaintiff No.1, son of Hridaya and his wife defendants No. 7 and 8 have 1/3 share, plaintiffs No. 2, 3 and other co-owners have 1/3 share, defendant No. 1 to 6 have also their shares in the property. It is further contended that deceased Rameshwar and Rama have 1/3 shares. It is further contended that against the order of Tahsildar, Patan on 03.02.1997, the plaintiff and defendant No. 7 and 8 have preferred an appeal before SDO, Patan. Sub Divisional Officer, Patan vide its order dated 22.08.1997 has recorded a finding that since the plaintiffs are in possession of their shares in view of earlier partition, therefore, no partition is required to be ordered and dismissed the appeal. Against the order of SDO, Patan, the plaintiff and defendant No. 7 and 8 have preferred an appeal before Additional Commissioner, Raipur which was rejected vide order dated 11.02.2002. It has further contended that the Additional Commissioner, Raipur has rejected the appeal and recorded the finding that way back 25 years ago, partition has been done and its document has also been filed whereas as per law if partition was done between the parties, it should be registered and document should be filed before the Court below but no such registered document was produced before the Revenue Court. It is further contended that neither the defendants have put their signature on the document nor plaintiffs have proved it, still the Revenue Court has recorded the finding that the partition has taken place and defendant No.1 is the title holder of the property. Therefore, the defendants have filed the present suit for declaration and partition. On above factual matrix, the plaintiffs have prayed that the property situated at village Patan, PH No. 30, Tahsil Patan, District Durg bearing khasra No. 1472, area 0.23 be declared as the joint property and their shares be granted.

5. Defendant No.1 filed his written statement denying the allegation made in the plaint contending that land situated at village Patan,PH No. 30, Tahsil Patan, District Durg bearing khasra No. 1472, area 0.23 has been received by the defendant No.1 in the partition and the partition has taken place prior to 30 years and documentation has been done. It is also contended that the lands were situated at village Khorpa and Patan and for both the villages partitions have been done 30 years prior.

Defendant No.1 is doing agricultural work on the