1 2025:CGHC:54277 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 33 of 2004  Meet Lal Kaushik aged about 50 years, S/o Gokran Prasad Kaushik, Mazdoor, R/o Dhandhan, Tehsil – Takhatpur, District - Bilaspur --- Petitioner(s) versus 1. Saraswati Bai, 36 years, W/o Ravi Kumar, housewife R/o Dhandhan, Tahsil – Takhatpur, District Bilaspur 2. Ravi Kumar, 39 years, S/o Gokran Prasad, Agriculturist R/o Dhandhan, Tahsil – Takhatpur, District Bilaspur 3. Durga Prasad, 42 years, S/o Gokran Prasad, Agriculturist R/o Dhandhan, Tahsil – Takhatpur, District Bilaspur 4. State of M.P.(Now State of C.G.), Through Collector, Bilaspur (C.G.) --- Respondent(s) with FA No. 32 of 2004  Meetlal Kaushik S/o Gokran Prasad Kaushik, Aged About 50 Years Mazdoor, R/o Dhandhan, Tehsil - Takhatpur, District - Bilaspur (C.G.). ---Petitioner(s) Versus 1. Ravi Kumar S/o Gokran Prasad Aged About 39 Years Agriculturist, R/o Village - Dhandhan, Tehsil - Takhatpur, Distt. Bilaspur. 2. Durga Prasad S/o Gokran Prasad, Aged About 42 Years Agriculturist, R/o Village - Dhandhan, Tehsil - Takhatpur, Distt. Bilaspur. 3. Brij Mohan Kaushik, S/o Ravi Kumar Kaushik Aged About 20 Years R/o Village - Dhandhan, Tehsil - Takhatpur, Distt. Bilaspur. 4. Jagmohan Kaushik S/o Ravi Kumar, Aged About 11 Years Since Minor, Through Father And Natural Guardian Ravi Kumar S/0 Gokran Prasad. --- R/o Village - Dhandhan, Tehsil - Takhatpur, Distt. Bilaspur. 5. State Of M.P. (Now State Of C.G.), Through Collector, Bilaspur (C.G.). --- Respondent(s) SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.11.12 16:07:34 +0530 2 For Appellant/Plaintiff : Mr. Shailendra Sharma, Advocate For State : Mr. Pramod Shrivastava, Deputy Government Advocate For Other Respondents : None, though served. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 06.11 .2025 1. These two appeals have been preferred by the plaintiff challenging the judgments and decrees passed by the learned 5th Additional District Judge, Bilaspur in Civil Suit Nos. 103A/1999 and 102A/1999 dated 22.04.2003, whereby the learned Trial Court has dismissed both the suits. 2. The facts in nutshell are that the appellant/plaintiff filed suit for declaration to the effect that the suit property is joint family property of plaintiff, defendant No. 2/Ravi Kumar and defendant No. 3/Durga Prasad and also challenged validity of two sale-deeds dated 18.05.1998 executed by mother of the plaintiff namely Keshar Bai in favour of defendant No. 1/ Saraswati Bai wife of Ravi Kumar(Civil Suit No. 103A/1999) and Brijmohan and Jagmohan Sons of Ravi Kumar (Civil Suit No. 102A/1999). The plaintiff and defendants No. 1 to 4(Civil Suit No. 102A/1999) are members of joint family. Plaintiff and defendants No. 1 & 2 are real brothers whereas Saraswati Bai is wife of Ravi Kumar. The mother of the Meet Lal Kaushik(plaintiff) and Ravi Kumar namely Keshar Bai died on 06.06.1999. Suit property mentioned in FA No. 32 of 2004 survey Nos. 22/3, 23/3, 88/3 and 24/2 admeasuring 4.12 acre situated at village Pendri, Tahsil Takhatpur, District Bilaspur, were recorded in name of Keshar Bai. Suit property mentioned in FA No. 33/2004, survey Nos. 106/9, 107/8, 108/8, 110/8, 111/8, 112/8, 116/8, 106/10 107/9, 108/9, 110/9, 111/9, 112/9, 116/9, 117/3, 124/3, and 125/3 total admeasuring 5.75 acre, were recorded in the name of Keshar Bai. It is further pleaded that the physical condition of 3 Keshar Bai was not good and before her death, she was staying with Ravi Kumar. It is further pleaded that taking benefit of her physical condition, two sale-deeds were executed without payment of consideration in favour of Saraswati Bai and Brijmohan & Jagmohan on 18.05.1998. The plaintiff further pleaded that Keshar Bai had no authority of law to alienate the property alone, thus, the plaintiff challenged both the sale-deeds and also claimed right over 1/3rd share of the entire property. 3. Defendants filed their written statements and denied the plaint averments. They pleaded that the sole owner of the property was Late Keshar Bai and suit property was her self acquired property, therefore, she had authority of law to alienate the property. They further pleaded that prior to execution of sale-deeds dated 18.05.1998 her physical condition was absolutely good and the plaintiff has filed these suits to harass the defendants. They also pleaded that the orders of mutation have already been passed in favour of the purchasers and they are in possession. The defendants pleaded that the plaintiff never remained in possession nor there was joint possession. They denied the plea of collusion between the defendants. 4. The learned Trial Court framed issues in both the Civil Suits and issues framed by the learned Trial Court in both suits are almost identical. The learned Trial Court held that the plaintiff could not establish the fact that the suit property was joint family property; the sale-deeds were executed by Late Keshar Bai in favour of Saraswati Bai and Brijmohan & Jagmohan on 18.05.1998; Late Keshar Bai had authority of law to alienate the property; there was no collusion between the defendants; proper Court fee was not affixed by the plaintiff in both suits. The learned Trial Court dismissed both the suits. 5. Mr. Shailendra Sharma, Advocate appearing for the plaintiff/appellant would 4 argue that mother of the plaintiff namely Late Keshar Bai was not sole owner of the suit property, therefore, she had no right to alienate the property without obtaining consent of other coparceners. He would further submit that Saraswati Bai/defendant No. 1 in Civil Suit No. 103A/1999 did not appear in the witness box to prove due execution of sale-deed. He would also submit that the consideration was not passed to Late Keshar Bai, and therefore, both the sale-deeds are not valid. He would contend that the learned Trial Court committed error of law in holding that the suit is not maintainable as the plaintiff failed to seek relief of possession. He would further contend that the property was joint family property, and thus, the appellant/plaintiff was in possession of the suit property. He would also contend that the defendants could not adduce evidence to establish the fact that the Late Keshar Bai was sole owner of the property. He would contend that the proper Court fee was affixed by the plaintiff; therefore, the finding recorded by the learned Trial Court in this regard appears to be erroneous. He would pray to set-aside both the judgments and decrees. 6. On the other hand, Mr. Pramod Shrivastava, Deputy Government Advocate appearing for the State would oppose. He would submit that the plaintiff was not found in possession of the suit properties by the learned Trial Court. He would further submit that the plaintiff had filed Civil Suits for declaration alone, and admittedly, he was not in possession, therefore, the learned Trial Court rightly recorded finding that in absence of consequential relief of possession, the suits are not maintainable. He would contend that appeals deserve to be dismissed. 7. I have heard learned counsel for the parties and perused the record of both suits with utmost circumspection. 8. The question for determination would be :- 5 (a) Whether the learned Trial Court justified in holding that suits were not maintainable in absence of relief for possession ? (b) Whether the learned Trial Court justified in holding that Late Keshar Bai was sole owner of the property and she had authority of law to alienate the property ? 9. Admittedly, two sale-deeds were executed by Late Keshar Bai in favour of Saraswati Bai wife of Ravi Kumar and Brijmohan & Jagmohan sons of Ravi Kumar dated 18.05.1998. Ex. P/1 Revenue record would reveal that earlier, there was partition between Kaushliya Bai, Bipat Bai and Keshar Bai daughters of Pyarelal. Ex. P/2 record of right would show that the entire suit property was recorded in the name of Keshar Bai. She acquired the suit property from her father. 10. Keshar Bai executed two sale-deed Ex. 6/A & Ex. 6 on 18.05.1998 in favour of Saraswati Bai, Brijmohan & Jagmohan and they were signed by attesting witness namely Suresh Thakur and Sanjay; sell consideration is also mentioned in the sale-deeds. Statements were recorded by concerned Tahsildar, where Keshar Bai vide Ex. D/1 stated that she had received consideration in cash and possession was handed over. 11. Perusal of the above-stated documents Ex. P/1, P/2, Ex. 6A, 6 and Ex. D/1, it can be presumed that Keshar Bai alone was owner of the suit properties as she had inherited the suit property from her father; therefore, she had authority of law to alienate the property. Accordingly, question No. (b) is answered in affirmative. 12. PW/1 Meet Lal Kaushik has deposed that the physical condition of Keshar Bai was not good at the time of execution of sale-deeds. He further stated 6 that objections were raised at the time of mutation and appeals were filed before the revenue authorities. In para 13, this witness admitted that Bhukin Bai his maternal grand mother had three daughters namely, Kaushaliya Bai, Keshar Bai and Bipat Bai. It is further admitted that there was partition and two daughters got 22-22 acres and his mother Keshar Bai got 18.56 acre of land. He further admitted in para 15 that his mother had sold part of property 25 years ago to one Balaram. In para 23, this witness admitted that in revenue record, the suit property is recorded in name of his mother and his name was never entered. PW/2 Dev Prasad Kaushik stated that the physical condition of Keshar Bai at the time of execution of sale-deed was not good. In para 14, this witness admitted that after one month from date of execution of sale-deeds, he had visited Late Keshar Bai, who informed that she did not receive consideration. In para 16, this witness has admitted the fact that Keshar Bai was never treated by psychiatrist. PW/3 Rajkumar also made attempt to establish the fact that the physical condition of Late Keshar Bai was not good. In para 7, he admitted that he never received summons; his name was not mentioned in the list of witnesses and on instance of plaintiff/Meet Lal Kaushik, he appeared in the witness box. 13. DW/1 Bharat Lal Sone, Clerk to the Office of Sub-Registrar of Bilaspur has stated that sale-deeds were not executed between January, 1997 to December, 1998. DW/2 S.R. Painkra, Sub-Registrar, Office of Registrar, Thakatpur, District Bilaspur admitted the fact that two sale-deeds were executed by a lady and she had admitted that consideration was passed to her. DW/3 Dr. V.K. Soni, C.H.C. Takhatpur proved the fact that Ravi Kumar had applied GPF advance Rs. 25,000/- and it was sanctioned on 29.06.1999. DW/4 Durga Prasad Kaushik deposed that the physical 7 condition of his mother was not good before death, she was not able to hear property and her eyesight was also week. He further stated that Late Keshar Bai was staying with Ravi Kumar. He stated that sale-deeds were never executed by his mother. DW/1 Ravi Kumar Kaushik supported his case and proved the contents of written statement. 14. Perusal of the evidence would make it clear that the registered sale-deeds were executed by Keshar Bai in presence of witnesses in favour of Saraswati Bai and Brijmohan & Jagmohan on 18.05.1998 and this fact has been established by the Sub-Registrar. The plaintiff or the defendant No. 4 could not lead evidence to rebut said piece of evidence. It is also established that the suit properties were recorded in name of Late Keshar Bai alone and she had inherited suit land from her father. 15. With regard to possession, the plaintiff has nowhere stated in the plaint that he was in possession of the suit property or any part of suit property. Admittedly, suits were filed by plaintiff for declaration only. With regard to physical condition, the plaintiff and defendant No. 4 could not adduce documentary evidence. Further, Sub-Registrar has proved due execution of sale-deeds, therefore, it can’t be presumed that physical or mental condition of Keshar Bai was not good. 16. The Hon’ble Supreme Court in the matter of S. Santhana Lakshmi & Ors vs. D. Rajammal, passed in Special Leave Petition (Civil) No. 18943 of 2024 while dealing with the similar issue held that where the suit has been filed for declaration and plaintiff is not in possession, the suit for declaration would not be maintainable, relevant para 10 and 11 are reproduced herein- below :- 8 “10. It is also significant that though the plaintiff did not have possession, she had not claimed recovery of possession. While asserting a Will and title on its strength, there should have been a declaration of title sought, especially when the contention of the defendant was that he came into the property as a co- owner and then occupies it with absolute rights, making valuable improvements. The defendant also did not seek to get a declaration on the basis of an arrangement entered into with the father and the other brother or seek a partition on the strength of a counter claim. 11. In the above circumstances, we cannot but find the ‘Will’ is proved but the right of the testator to bequeath the property is still under a cloud. Even if the title is established, there should have been a recovery of possession sought by the plaintiff. The ill- drafted plaint and the clear admissions made in the witness box ought to have restricted the trial court and the High Court from granting an injunction against the interference of peaceful enjoyment of the property, especially when the possession was admitted to be with the defendant, in the pleadings as also the oral evidence. The injunction against alienation is perfectly in order since the defendant too has not sought for a declaration of title.” 17. Admittedly, the plaintiff has not sought for relief of possession, when he is not in possession; therefore, the learned Trial Court rightly recorded findings against the plaintiff in both the Civil Suit. Accordingly, question No. (a) is answered against the plaintiff/appellant. The exhibited documents and admission of plaintiff would make it clear that Late Keshar Bai inherited suit property from her father, therefore, she had right to alienate it. Accordingly, question No. (b) is answered in affirmative against the plaintiff. 9 18. In result, both the appeals are hereby dismissed. No cost(s). 19. Decree be drawn accordingly. Sd/- (Rakesh Mohan Pandey) Judge $iddhant