1 2025:CGHC:28238 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 684 of 2019 1. Kashichand (Dead) S/o Late Nandu Sao Aged About 64 Years Through Legal Representatives, R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.1 - (A) Kiran Gupta D/o Late Kashichand Aged About 50 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.2 - (B) Satish Gupta S/o Late Kashichand Aged About 48 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.3 - (C) Remi Gupta D/o Late Kashichand Aged About 46 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.4 - (D) Annu Gupta D/o Late Kashichand Aged About 40 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.5 - (E) Alka Gupta D/o Late Kashichand Aged About 37 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.6 - (F) Ambikesh Gupta S/o Late Kashichand Aged About 35 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 1.7 - (G) Shani Gupta S/o Late Kashichand Aged About 32 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 2. Smt. Sunaina Devi (Wrongly Mentioned In Judgment As Munaina) W/o Radheshyam Aged About 65 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3. Mukesh Gupta (Wrongly Mentioned In Judgment As Keshari) S/o Late Radheshyam Aged About 30 Years R/o Sadar Road, MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.07.29 11:02:29 +0530 2 Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 4. Rakesh Gupta (Wrongly Mentioned In Judgment As Keshari) S/o Late Radheshyam Aged About 24 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 5. Mohan Gupta (Wrongly Mentioned In Judgment As Keshari) S/o Late Nandu Sao (Wrongly Mentioned In Judgment As Radheshyam) Aged About 46 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 6. Vidyasagar S/o Late Nandu Sao Aged About 43 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Appellant(s) versus 1. Madhu Gupta D/o Late Nandu Sao Aged About 45 Years R/o Sadar Road, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 2. Pannalal S/o Late Madho Sao Aged About 50 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3. Durga Devi (Dead) D/o Late Nandu Sao Aged About 69 Years Through Legal Representatives, R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3.1 - (A) Suneel S/o Late Madho Sao Aged About 55 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh. 3.2 - (B) Nand Kishor S/o Late Madho Sao Aged About 52 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3.3 - (C) Geeta Keshari D/o Late Madho Sao Aged About 37 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3.4 - (D) Savita Gupta D/o Late Madho Sao Aged About 35 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3.5 - (E) Rajesh Gupta S/o Late Madho Sao Aged About 34 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3.6 - (F) Sunita Gupta D/o Late Madho Sao Aged About 33 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3 3.7 - (G) Sarita Gupta D/o Late Madho Sao Aged About 31 Years R/o Bramhapara, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 4. Smt. Lalita Devi D/o Nandu Sao Aged About 55 Years R/o Mayapur, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 5. Dulari Devi D/o Madho Sao Aged About 50 Years R/o Near Joda Pipal, Ambikapur, District Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 6. Smt. Subhadra Devi D/o Nandu Sao Aged About 48 Years R/o Village Balango, Tahsil Wadrafnagar, District Balrampur, Chhattisgarh., District : Balrampur, Chhattisgarh 7. Smt. Yashoda Devi @ Jaswanti Devi D/o Madho Sao Aged About 60 Years R/o Village Balango, Tahsil Wadrafnagar, District Balrampur, Chhattisgarh., District : Balrampur, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Achyut Tiwari, Advocate For Respondents No. 1 and 6 : Mr. Anurag Singh, Advocate For Respondent No. 2 : Ms. Priyanka Mehta, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 26.06.2025 1. The appellants have filed this second appeal under Section 100 of CPC against the judgment and decree dated 03.02.2017 passed by the learned Fifth Additional District Judge, Surguja (Ambikapur) (C.G.) in Civil Appeal No. 9A/2016 by which the appeal filed by the plaintiff has been dismissed against the order dated 22.12.2015 passed by the learned Fourth Civil Judge Class-II Ambikapur, Surguja (C.G.) in Civil Suit No. 1128A/2012 by which the suit filed by the plaintiff for declaration and possession has been allowed. 2. The parties are referred as their description in the trial Court. 3. This second appeal has been admitted on the following substantial question of law by this Court today and with the consent of the 4 parties the appeal heard finally - “Whether the first appellate Court was justified in allowing the appeal against the defendant No. 5 who expired on 07.12.2016 during pendency of appeal without taking into consideration its nullity value. 4. Brief facts as reflected from the record are that: (a) The plaintiff filed a civil suit before the learned Fourth Civil Judge Class-II, Ambikapur (C.G.) for partition which was registered as Civil Suit No. 2-A/2013 mainly contending that the plaintiff and defendants are legal heirs of Janki Sao and they are brother and sisters. They are governed by the Hindu law. It has been contended that land bearing Khasra No. 1005 area 0.031 hectare and Khasra No. 1006 area 0.013 hectare which is nazul land situated at village Sadar Road, Ambikapur, Tehsil - Ambikapur, District - Sarguja (C.G.) is ancestral property and recorded in the name of all the legal heirs of late Nandu Sao (herein after referred to as “suit property”). (b) It has also been contended that the suit property is jointly recorded in the revenue records and no partition has taken between the parties, therefore, she has filed a suit for partition. (c) Trial Court issued notices to the defendants, the defendants No. 11 and 12 have appeared and filed their written statements and admitted that the claim of the plaintiff and respondents No. 1 to 10 was proceeded ex-parte. The learned trial Court vide its judgment and decree dated 22.12.2015 has dismissed the suit filed by the plaintiff after recording its finding that the plaintiff is unable to establish that she has title over the suit property, as 5 such, she cannot claim partition. (d) Being aggrieved with this judgment and decree the plaintiff has preferred first appeal No. 96 of CPC before trial Court mainly contending that it is not dispute that the suit land is a joint family property, as such, it is not required to establish that the property is in the name of the plaintiff only then she would claim partition over the joint family property as both the parties have not disputed about genealogy of the family and would pray for allowing the appeal. (e) During the pendency of the appeal one respondent No. 5 has expired on 07.12.2016, but inadvertently no such application was filed by the plaintiff for bringing legal representatives of respondent No. 5 on record. The learned first appellate Court considering the evidence and material on record has allowed the appeal and set aside the judgment and decree of the trial Court by recording its finding that the document Exhibit P/1 was produced before the trial Court wherein the name of the plaintiff and the defendants have been incorporated and the trial Court has committed illegality in not taking into consideration the revenue records even in absence of any objection taken by the respondents/defendants regarding correctness or genuineness of these revenue records. Accordingly it has set aside the judgment and decree and has passed a decree of partition of the suit property. Being aggrieved with the judgment and decree passed by the first appellate Court, legal representatives of defendants No. 5 and 6 to 10 who were proceeded ex-parte before the trial Court have filed this appeal. 6 5. Learned counsel for the appellants would submit that the learned trial Court has committed illegality in passing the judgment and decree against the deceased persons who died during the pendency of appeal, therefore, the entire judgment and decree is nullity and would pray for allowing the second appeal and would also pray for deciding the substantial question of law in their favour. To substantiate his submission, he has referred to the judgment of Hon’ble Supreme Court in case of Delhi Development Authority vs. Diwan Chand Anand and Others reported in (2022) 10 SCC 428 and also in case of Gurnam Singh (Dead) Through Lrs. And Others vs. Gurbachan Kaur (Dead) By Lrs. reported in (2017) 13 SCC 414 wherein the Hon’ble Supreme Court has held that the failure of bringing legal representatives of the deceased party on record within stipulated time period then such decree is nullity and can be challenged at any time whenever they are prosecuting the case before the judicial forum. Thus, he would pray for allowing the appeal. 6. Per contra, learned counsel for the respondent No. 1 and 6 would submit that the judgment and decree passed by the trial Court so far as merit is concerned, is in accordance with law and does not warrant interference and so far as the substantial question of law framed by this Court is concerned, he would submit that the opportunity is always reserved for the defendants to challenge the same even at the time of execution of decree, thus he would submit that sufficient opportunities are available with them and would pray for answering the substantial question of law against the appellant and would pray for dismissal of the appeal. 7 7. Ms. Mehta, learned counsel for the respondent No. 2 will also support the judgment and decree passed by the trial Court and would pray for dismissal of the appeal. 8. I have heard learned counsel for the parties and perused the record with utmost satisfaction. Finding and discussion on substantial question of law: 9. From the pleadings made in the plaint, it is quite vivid that the plaintiff has filed the suit for partition of ancestral property to the extent of her share wherein all the legal heirs have been arrayed as party to the suit. It is also not in dispute that the parties are governed by Hindu law and the daughter being coparcener in the ancestral property right from her birth, therefore, she can claim partition to the extent of her share. It is also well settled position of law that in a partition suit concerning ancestral property under Hindu law if a defendant dies during the pendency of appeal, the appeal will not automatically abate as the deceased’s interest in the property evolves on the surviving defendants. It is also well settled position of law that in a suit for partition of joint family property, the position of plaintiff and defendant can be interchangeable and the partition suit does not abate as a whole due to no legal representatives of the property which is already in possession of plaintiff and defendant co-owners and are already on record. It is settled law that in a partition suit there cannot be question of abatement of a suit for partition as a whole due to the death of only one of the parties interlocutory other suits. The partition suits have a unique feature in the sense that every in such suits has interest in the property and can be deemed as plaintiff seeking adequate relief 8 against others and there may be no question of limitation involved in such proceedings for all practical purposes as the interest of any of the parties in the partition suit is not affected by any abatement nor there is any prejudice caused to any side in any of the situation. The Hon’ble Supreme Court in case reported in 2005 (11) SCC 582 in case of Mahmud Mian through Lrs. vs. Samsuddin Mian through Lrs. & Others has held as under: “4. After hearing the learned counsel for the parties, we are satisfied that the impugned judgment of the Division Bench does not satisfactorily dispose of the appeal. It was a partition suit. On account of the death of one of the parties, the appeal could not have abated in its entirety. This appeal is, therefore, allowed. The impugned judgment dated 3-3-2000 is set aside and the letters patent appeal is remanded to the High Court for hearing and decision afresh on merits.” 10. Thus, it is quite vivid that the suit will not abate on account of failure on the part of appellant to bring the legal representative of respondent No. 5 on record. So far as judgment cited by the learned counsel for the appellants in case of Gurnam Singh (Dead) (Supra) deals with the agreement of sale between the plaintiff and original defendant No. 1. Similarly, in case of Delhi Development Authority (Supra) which is a case of declaration and permanent injunction filed by the plaintiffs for themselves as well as on behalf of other co-sharers with respect to entire land jointly owned by them wherein also the Hon’nble Supreme Court has directed the High Court to conduct the enquiry due to the death of one of the party, the entire suit will be abated or not. Thus, the judgment cited by the learned counsel for the appellant is not applicable to the present facts of the case. Accordingly, the substantial question of law framed by this Court deserves to be 9 answered against the appellant. 11. So far as finding recorded by the learned first appellate Court while allowing the appeal, it has taken into consideration the Exhibit P/1 which is Khasra Panchshala wherein name of the plaintiff and all the defendants have been incorporated and these documents were exhibited without any objection, thus, revenue records are sufficient to establish prima-facie the title of the persons whose names have been recorded in absence of any cogent evidence brought on record to rebut the genuineness or correctness of the revenue records brought by the defendants, as such, I am of the view that the finding recorded by the trial Court does not suffer from illegality and perversity which warrants interference. 12. Considering the law laid down by the Hon’ble Supreme Court, I am of the view that the appeal is liable to be dismissed and accordingly, it is dismissed with an observation that the appellants are at liberty to claim their shares at the time of execution of the decree passed by the appellate Court. 13. Accordingly, the second appeal is dismissed. No order as to costs. 14. A decree be drawn up accordingly. 15. Interim order passed by this Court on 17.12.2021 is vacated. Sd/- (Narendra Kumar Vyas) Judge Manish