1 2025:CGHC:55850 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved for Judgment on : 06.10.2025 Judgment Delivered on : 17/11/2025 Judgment Uploaded on : 17.11.2025 SA No. 544 of 2007 Udal S/o Kartik Ram Kewat, Aged About 60 Years R/o Village Dhardei, Tahsil Pamgarh, District-Janjgir-Champa (C.G.) ---(Defendant No.1) --- Appellant versus 1 - Beena D/o Dr. R.R. Dubey, Aged About 30 Years, 2 - Pushpa D/o Dr. R.R. Dubey, Aged About 28 Years 3 - Shanta D/o Dr. R.R. Dubey, Aged About 26 Years No.1 to 3 are R/o F-10 And 19 Market Bhawan Rourkela 3 (Orissa) ---- (Plaintiff) 4. (A) Smt. Uma Bai (Died And Deleted) As Per Honble Court Order Dated 11-07-2024. 4. (B) Smt. Bhagwati Bai (Died And Deleted) As Per Honble Court Order Dated 11-07-2024. 4.(C) Baleshwar S/o Late Ramdheen, Aged About 41 Years (At Present Age 58 Years) R/o Gountiya Bada, Mohalla Gondpara, Ward No. 3/4, Seepat, Tahsil -Seepat, District Bilaspur(C.G.) 4.(D) Santosh S/o Late Ramdhin, Aged About 28 Years 4.(E) Smt. Punita Pandey, W/o Tarachand Pandey, Aged About 30 Years (At Present Age 47 Years), R/o Village Champa (Pachori), Tahsil - Champa, District Janjgir-Champa (C.G.) 4.(F) Smt. Shanta Sharma W/o Sunil Sharma, Aged About 29 Years (At Present Age 46 Years), R/o Bramhanpara, Raipur, District Raipur (C.G.) 4.(G) Smt. Ambalika, W/o Sushil Shukla, Aged About 45 Years R/o Village Farhada, Post Gatoura, Via Jairam Nagar, Tahsil And District Bilaspur, (Chhattisgarh) --- Respondents ____________________________________________________________ For Appellant : Mr. Ravish Verma, Advocate For Respondent No.1 to 3 : Mr. Anand Kumar Gupta, Advocate BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.11.17 17:36:45 +0530 2 Hon'ble Shri Justice Parth Prateem Sahu CAV Judgment 1. This second appeal U/s.100 of C.P.C. is filed by appellant/defendant No.1 questioning the legality and sustainability of the impugned judgment and decree dated 18.09.2007, passed in Civil Appeal No.16- A/2005, whereby, learned Additional District Judge, Janjgir-Champa, District – Janjgir-Champa (C.G.) allowed the appeal filed by plaintiffs, reversing the judgment and decree dated 03.09.2005, in Civil Suit No.1-A/2005 wherein learned Civil Judge Class -2, Janjgir, District – Janjgir-Champa, dismissed the suit of plaintiffs/respondents No.1 to 3 herein. 2. For the sake of convenience, the parties will be referred to as per their respective status before the trial Court. 3. The facts relevant for disposal of this appeal are that original plaintiff – Saraswati Bai and Laxmi Bai filed a civil suit for declaration of title and for possession in respect of the land situated at village Dhardei, P.C. No.71/16, R.I. Circle and Tahsil – Pamgarh. It was pleaded that one suit was filed with respect to the suit land and all movable and immovable property before the Court of Civil Judge Class-I, Bilaspur bearing Civil Suit No.5-A/59. In that civil suit, preliminary decree of partition was passed, against which defendant No.2 Ramdheen has preferred an appeal which came to be dismissed vide judgment and decree dated 06.04.1967 upholding the preliminary decree passed by learned trial Court. Final decree was passed on 21.12.1982 by calling the Commissioner report. Pursuant to the judgment and decree of 3 earlier suit, the property bearing Item No.-7, Sr. No.1, measuring 35 x 52 feet = 1820 sq.ft., which is shown to be Badi fell into share of Saraswati Bai. According to final decree dated 28.12.1982, Badi was of Saraswati Bai. Defendant No.2 was not having any right or title to transfer the land/Badi fallen in share of Saraswati Bai, therefore, the sale deed executed of Badi/suit property in favour of defendant No.1 by defendant No.2 is illegal and void and no title is transferred in favour of defendant No.1. It is also pleaded that property, subject matter of the suit is received by Saraswati Bai in partition and she is in possession of the suit property since last about 30-40 years. Defendant No.2 got another Badi situated at Village- Seepat in partition. Defendant No.2 was never in possession of suit property. Plaintiffs are in possession of suit property since last more than 12 years and they have perfected their title based on adverse possession. Plaintiffs and defendant No.2 have already partitioned the property mutually and through legal process. Plaintiffs are entitled for possession of suit property after removing construction made on the disputed land. 4. Defendants Nos. 1 and 2, Udal and Ramadhin filed their written statement refuting the plaint allegation. It was pleaded that the disputed land had been partitioned long ago among Naginbai, Saraswatibai, and Ramadhin, and suit land fell in to share of deceased defendant No. 2, Ramadhin. The plaintiffs have no right or claim over the suit property. Defendant No. 1, Udal, was not a party to the earlier civil suit; hence, that decree is not binding on him. Naginbai is a necessary party, and in her absence, the suit is not maintainable. The 4 plaintiffs have also failed to produce a map to identify the suit land. It was also pleaded that Naginbai sold her share to Kartik and others, and father of defendant No. 1, Kartikram, had been in possession since 5/6/1964. After his death, Udal continued possession, thereby perfecting title by adverse possession. Plaintiffs have no right, title, or interest in the disputed land. 5. Learned trial Court based on the pleadings made by respective parties formulated 7 issues for consideration. Parties led their evidence and upon appreciation of the documentary and oral evidence brought on record by respective parties, the learned Trial Court dismissed the suit filed by the plaintiffs, holding that plaintiffs failed to establish that the suit land fallen in their share in the partition and thereby failed to prove their title over the suit land. The judgment and decree passed by learned trial Court is put to challenge in an appeal before learned First Appellate Court and learned First Appellate Court by impugned judgment and decree reversed the judgment and decree passed by the learned trial Court and decreed the suit in favour of plaintiff. Against which, this second appeal is filed. 6. Learned counsel for appellant/defendant would submit that learned First Appellate Court erred in reversing the well reasoned judgment and decree passed by the learned trial Court dismissing the suit filed by plaintiffs observing that plaintiffs failed to prove that the land, subject matter of civil suit was of their ownership land. He also contended that learned trial Court based on the pleadings and the evidence had clearly observed that plaintiffs could not able to prove that the land, subject matter of suit fall into their share in partition of 5 the property amongst co-coparcener. The judgment and decree dismissing the suit was challenged by the plaintiffs before the First Appellate Court, wherein the learned First Appellate Court only on the basis of presumption and surmises has turned down the well reasoned finding recorded by the learned trial Court and observed that plaintiff proved the pleadings made therein and that the property in dispute fall into their share and further observed that the land, subject matter of civil suit was received by the plaintiffs in a partition vide judgment and decree passed in earlier civil suit, therefore, they are title holder. He contended that there is no mention of description of property and plaintiffs have also not filed the map showing the boundaries of the property, if any, owned by them. Referring to evidence of Babulal (P.W.-1), he submits that this witness in cross-examination has categorically admitted that property received in share of plaintiff- Saraswati was sold to Dadulal and Babulal vide registered sale deed. He submits that once there is an admission by the witnesses of the plaintiff that property received in her share was already sold, then it is for the plaintiff to prove the fact that what was the area received by plaintiff in her share in partition and what portion has been sold and area of the land remaining in her possession which is missing. He also submits that according to the provisions Under Order 7 Rule 3 of C.P.C., it is for the plaintiff to specify the description of the property so that it can be identified clearly but in the pleadings no such specification has been mentioned nor map is enclosed of disputed property. In support of his contention, he placed reliance upon the decision of High Court of Orissa in case of Bandhu Das & Anr. Vs. Uttam Charan Pattanaik, reported in AIR 2007 ORISSA 24 and 6 decision of Hon’ble Supreme Court in case of Pratibha Singh & Anr. Vs. Shanti Devi Prasad & Anr., reported in (2003) 2 SCC 330. 7. Learned counsel appearing on behalf of respondents No.1 to 3 vehemantally opposes the submission of learned counsel for appellant and would submit that learned First Appellate Court considering the pleadings made in the plaint, evidence and witnesses examined by plaintiffs in their support and also considering the documents exhibited during the course of recording evidence of plaintiffs witnesses, have rightly came to conclusion that the suit property fell into share of plaintiffs, therefore Ramadhin was not having any right or title over the property, subject matter of suit, which was received by plaintiffs in partition pursuant to the judgment and decree passed by the Court of competent jurisdiction. He also contended that the witness Babulal (P.W.-1) examined on behalf of the plaintiffs had clearly stated the area of the land, subject matter of the dispute received in partition by plaintiffs. He submits that portion of evidence of Babulal (P.W.-1) which is referred by learned counsel for appellant is with respect to the part of the land, which is received by plaintiffs in share and disputed property is remaining portion of the land which was received by plaintiff. He submits that Ramadhin was not given any share of immovable property situated at village Dhardei, but he was given immovable property situated at village – Seepat as the ancestors of plaintiffs and Ramadhin were having immovable property in four villages i.e. Seepat, Dherdei, Lingiyadih and Juna Bilaspur. He submits that learned First Appellate Court have rightly taken into consideration the Commissioner’s report prepared for partition of suit property as 7 forming part of earlier civil suit between Ramchandra, husband of Saraswati Bai against Shivchand and others and would submit that in the said judgment and decree, entire ancestral property was partitioned between two brothers i.e. Ramchand and Shivchand. 8. I have heard learned counsel for parties and perused the documents placed on record. 9. This second appeal is admitted for hearing on the following substantial question of law :- “Whether the finding recorded by the Appellate Court that the suit property is fall within share of the plaintiff, suffers from perversity and illegality?” 10. Perusal of the plaint available in record of the trial Court would show that suit was initially filed for declaration of title and possession. In para-1-A (inserted after amendment), there is pleading that the property, subject matter of the suit, one civil suit was filed bearing Civil Suit No.5-A/59. In that civil suit, preliminary decree of partition was passed, against which defendant No.2 Ramdheen has preferred an appeal which came to be dismissed vide judgment and decree dated 06.04.1967 upholding the preliminary decree passed by learned trial Court. Final decree was passed on 21.12.1982 by calling the Commissioner report. Pursuant to the judgment and decree of earlier suit, the property bearing Item No.-7, Sr. No.1, measuring 35 x 52 feet = 1820 sq.ft., which is shown to be Badi fell into share of Saraswati Bai. According to final decree dated 28.12.1982, Badi was of Saraswati Bai. Defendant No.2 was not having any right or title to transfer the land/Badi fallen in share of Saraswati Bai, therefore, the sale deed executed of Badi/suit property in favour of defendant No.1 8 by defendant No.2 is illegal and void and no title is transferred in favour of defendant No.1. It is also pleaded that property, subject matter of the suit is received by Saraswati Bai in partition and she is in possession of the suit property since last about 30-40 years. Defendant No.2 got another Badi situated at Village- Seepat in partition. Defendant No.2 was never in possession of suit property. Plaintiffs are in possession of suit property since last more than 12 years and they have perfected their title based on adverse possession. Plaintiff and defendant No.2 has already partitioned the property mutually and through legal process. In para-7 it is pleaded that defendant No.2 came in possession of suit property after receiving the possession by defendant No.1 from plaintiff No.1 and deceased defendant No.2. Plaintiffs are entitled for possession of suit property after removing construction made on the disputed land. 11. From the pleadings made in the plaint it is apparent that plaintiffs are claiming title over the land based on some earlier partition suit bearing No.5-A/59 meaning thereby the plaintiffs and defendant No.2 belongs to same family. Burden to prove the fact that property in dispute fell into share of plaintiff No.1 -Saraswati Bai is upon the plaintiffs. To prove their case, plaintiffs have examined Babulal as (P.W.-1), Jai Prakash as (P.W.-2). Plaintiff -Saraswati Bai did not entered into witness box to prove the pleadings made therein. 12. Babulal (P.W.-1) in his evidence has made statement that land, subject matter of the suit was 29 hand x 29 hands. It is commonly known as Amli Kola. Plaintiffs reside in village Dherdei. Disputed land (open land) was given on rent by Saraswati Bai to defendant No.1 on Rs.40/- 9 per month for keeping the paddy straw on it. In cross-examination, this witness admitted that Saraswati Bai has sold her share of land to Dadulal and Babulal, however, he denied the suggestion given to him that land, subject matter of suit is of Ramadheen’s share. He also stated that the land was given on rent to defendant No.1 on Rs.40/- per month. Jai Prakash (P.W.-2) also stated that land, subject matter of suit fell into share of plaintiff Saraswati in partition. According to partition, land subject matter of suit is not of Ramadheen, therefore, he is having no right to sale the land. In cross-examination, this witness stated that his marriage with Meena Bai took place in the year 1991. The land, subject matter of suit is situated at village Dherdei. He denied the suggestion that he came to file suit as power of attorney holder. He further stated that before his marriage, Saraswati Bai died. He also stated that Nagin Bai and Ramadheen are known to him. He is not aware as to what talk took place between Udal and Ramadheen i.e. defendant No.1 and defendant No.2. From evidence of witness Jai Prakash (P.W.-2), it is apparent that he came to village Dherdei only after his marriage, before his marriage Saraswati Bai died. 13. Plaintiffs in support of their case have exhibited copy of Commissioner report dated 30.07.1962 as Ex.P-1. Copy of judgment and decree dated 05.10.1958 passed in civil appeal filed by Ramadhin against Saraswati Bai and Laxmi Bai. In the Commissioner report (Ex.P-1), there is mention that in report dated 17.01.1961 in para-2 there is mention of no agreed list as to the quantum and details of immovable property to be partitioned. In the body of Commissioner report, it is only mentioned about Schedule A,B, C and E with regard to the 10 property, subject matter of earlier suit. There is no specific mention of name and numbers of property fell into share of Saraswati Bai or her husband. 14. The burden to prove the fact asserted in the pleadings lies on the person who asserts it. As in the case at hand plaintiffs, filed the suit pleading therein, that the suit property fell into their share in partition arising out of preliminary decree passed in Civil Suit No.5-A/59, however, there is no documentary evidence available in record so as to accept the pleadings made in the plaint and the oral evidence of plaintiff witness that the property subject matter of suit fell into share of Saraswati Bai in partition, plaintiffs have not submitted any documents or schedule as mentioned in the Commissioner report (Ex.P-1) as part of the record. 15. Hon’ble Supreme Court in case of Rangammal v. Kuppuswami & Anr., reported in (2011) 12 SCC 220 has observed thus :- “21. Section 101 of the Evidence Act, 1872 defines “burden of proof” which clearly lays down that: “101.Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such 11 conclusion, he cannot proceed on the basis of weakness of the other party.” 16. Hon’ble Supreme Court further in case of Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan, reported in (2022) 20 SCC 233 has further considering the burden of prove and held thus :- “74. As per Section 101 of the Evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This section is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.” 17. It is the burden upon the person, who asserts any fact and in case at hand, the fact of earlier partition and suit property received in share of plaintiff- Saraswati Bai was upon plaintiffs, which the plaintiffs could not be able to prove the fact that pursuant to the earlier judgment and decree passed in civil suit, disputed property fell into share of plaintiffs. 18. Learned trial Court in its judgment and decree dated 03.09.2005, passed in Civil Suit No.1-A/2005, has dismissed the suit on the ground that plaintiffs failed to prove their title. Learned trial Court has further considered that the case of the plaintiffs is based on final decree dated 21.12.1982, however, in the said judgment and decree, there is no specific mention that land measuring 29 x 29 hands, subject matter of suit property is one and same as mentioned in share of the plaintiffs. 12 Learned trial Court has further taken note of the fact that plaintiff has not submitted any map along with plaint to specify the identity of the suit property. 19. In the case at hand, plaintiff did not entered into witness box, therefore, in the facts of the case, plaintiffs failed to discharge their burden to prove the pleading of title of plaintiffs in disputed property. Learned trial Court has also taken note of that though there is pleading in the plaint that suit property was given on rent of Rs.40/- to defendant No.1, however, there is no mention about the period of rent/lease, date of commencement of rent, oral written rent deed. It is also considered by learned trial Court that evidence as given by Babulal (P.W.-1) that land subject matter of the suit was given on rent to defendant No.1 in his presence is not pleaded specifically in the plaint and found the pleadings made in the suit to be not proved and decided the issue framed against plaintiffs. 20. Learned First Appellate Court has allowed the appeal considering that learned trial Court has given preference to the oral evidence and have not considered the evidence of defendant given in favour of plaintiff. Learned First Appellate Court has not assigned any specific reason to turn down the finding recorded by learned trial Court with regard to the land, subject matter of the suit was given on rent to defendant No.1, but only considered the oral evidence of (P.W.-1) Babulal. In para-17, learned First Appellate Court has considered that Nagin Bai, co sharer has sold her portion of land and further recorded that if any co-sharer disposes her property received in share by sale then no adverse inference can be drawn. While discussing this fact, learned First 13 Appellate Court has not taken into consideration the evidence of Babulal (P.W.-1) in particular para-1 of his cross-examination, where he admitted that plaintiff- Saraswati Bai has sold her land received in partition to some other person. As this Court has discussed on the preceding paragraph that plaintiffs have not submitted Schedule ABCD forming part of the Commissioner report, of partition pursuant to the earlier judgment and decree passed in Civil Suit No. 5-A/1959, was not considered by the Appellate Court. There is no suggestive evidence available on record to arrive at a conclusion that the property subject matter of civil suit fell into share of plaintiff -Saraswati Bai. The finding recorded by learned First Appellate Court in para-17 that the land subject matter of suit is received by plaintiff in partition pursuant to the judgment and decree passed by the concerned Court is without there being any admissible evidence. 21. For the foregoing discussion, in the opinion of this Court, the learned First Appellate Court erred in law in reversing the finding recorded by learned trial Court that plaintiffs failed to prove her case. Accordingly, the substantial question of law formulated by this Court and extracted in preceding paragraph is answered in affirmative. 22. In a result, this appeal is allowed and impugned judgment and decree dated 18.09.2007, passed by the learned First Appellate Court is set- aside affirming the judgment and decree dated 03.09.2005 passed by learned trial Court. 23. Decree be drawn accordingly. Sd/- (Parth Prateem Sahu) Judge Balram