1 / 11 2025:CGHC:47651 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 159 of 2013 1. Shivkunwar (Died And Deleted) 2. Rajkumar (Died) Through Lrs 2.1 - Saraswati Chandra W/o Rajkumar Chandra, D/o Janak Ram Aged About 28 Years R/o Village Kaashigadh, Tehsil And Police Station Jaijaipur, District Janjgir- Champa 3. Ramkumar S/o Harishchandra Aged About 38 Years Caste - Chandranahu, R/o Village - Katari, P.S. And Tah. Malkharoda, Distt. Janjgir-Champa Chhattisgarh --- Appellants/ Defendants VERSUS 1. Uttam Kumar (Died) Through Lrs …...Plaintiff 1.1 - Ganga Bai (Deleted) 1.2 - Anjani Kumari Chandra D/o Uttam Kumar Chandra, W/o Santosh Kumar Chandrakar Aged About 35 Years R/o Village- Katari, P.S. And Tah. Malkharoda, Distt. Janjgir-Champa Chhattisgarh 1.3 - Dinesh Kumar Chandra (Died and Deleted) 1.4 - Rajesh Kumar Chandra S/o Uttam Kumar Chandra Aged About 23 Years R/o Village- Katari, P.S. And Tah. Malkharoda, Distt. Janjgir-Champa Chhattisgarh 2. State of Chhttisgarh Through the Collector, Janjgir, P.S. Janjgir, Distt. Janjgir-Champa Chhattisgarh --- Respondents For Appellants : Ms. Sharmila Singhai, Senior Advocate assisted by Ms. Kanchan Kalwani, Advocate For Respondent No. 1 : Mr. H.S. Patel, Advocate For Respondent-State : Mr. Kalpesh Ruparel, Panel Lawyer Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD 16/09/2025 1. This appeal has been preferred by appellants- defendants questioning the legality and sustainability of impugned judgment and decree dated 15.01.2013 passed by learned First Additional District Judge, Sakti District PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 11 Janjgir-Champa in Civil Appeal No. 54-A/2011, arising out of judgment and decree dated 26.08.2011 passed in Civil Suit No. 114-A/2009 by learned Civil Judge, Class II, Malkharouda, District Janjgir-Champa, C.G. 2. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the suit before the trial Court. 3. This appeal was admitted vide order dated 13.12.2013 on following substantial question of law. “1. Whether the two Courts below have committed an error in not considering the earlier partition that is taken place between the parties, as is also proved by Ext. D-16 ie., an order of Tehsildar, in this regard? 2. Whether the first appellate Court has committed an error of law in not considering the issue of the suit being barred by limitation, while deciding the first appeal?” 4. Facts of the case relevant for disposal of this appeal are as follows: Plaintiff, Uttam Kumar, is the son of Harischandra from his second wife, Jankibai. Harischandra initially married to defendant No.1, Shivkunwar, but no child was born and she deserted him for about 11–12 years. Harischandra married Jankibai, from whom the plaintiff and a daughter (since deceased) were born. Later, defendant No.1 resumed cohabitation with Harischandra, and two sons, defendants No.2 and 3 (Ramkumar and Rajkumar), were born. Harischandra died in 1977. After his death, Jankibai shifted to another village, relinquishing her share, while the plaintiff continued in possession of the suit house and land. In 1979, revenue records were mutated in the joint names of the plaintiff and defendants. However, defendant No.1 and her brother Ratanlal allegedly began harassing the plaintiff and sought to deprive him of his rights. A village Panchayat recognized the plaintiff’s possession, yet he had to move to Delhi and later Korba for livelihood, though he regularly cultivated the 3 / 11 disputed land during sowing and harvesting seasons. In 1999, when the plaintiff sought financial help for his daughter’s marriage, he discovered that except Khasra No.2, remaining ancestral land had been fraudulently mutated in defendants’ names on the basis of a fabricated, unregistered partition deed. The plaintiff contends that this partition is false, unlawful, and without his consent. He relies on a prior civil suit (No.19-A/84), decided on 18.12.1999, where the alleged partition was not proved and defendant No.1’s claim was rejected, thereby attracting the principle of res judicata. Accordingly, the plaintiff asserts his entitlement as the eldest son of Harischandra to 1/3 share in the disputed land and house and seeks declaration of ownership, partition, and separate possession. 5. Defendants Nos.1 and 3 filed a counterclaim, while denying all allegations of the plaintiff, submit that the suit is based on false and fabricated grounds. They state that defendant No.1 is the legally wedded wife of late Harischandra, and that Jankibai was married to him 15–16 years thereafter. After the death of Harischandra, plaintiff voluntarily left village Katari and has since been residing in Korba, having already received his share of property, which he sold. Defendants deny that defendant No.1 ever deserted Harischandra or lived in Thathari village, and further deny any quarrel or harassment. After Harischandra’s death, names of the plaintiff and defendant No.1 were recorded in the revenue records, and since defendants Nos.2 and 3 were then minors, their names were also entered with defendant No.1. Defendant No.1 was the head of the family, and the plaintiff was always independent, never deprived of food or shelter. The defendants assert that a partition took place in 1979 between the plaintiff and defendant No.1, under which defendant No.1 received lands of Schedule E, while the plaintiff received house of Schedule H (later sold to Dadu Singh Soni), as well as lands in Schedules P, R, and M, which he also sold before shifting permanently to Korba in the year 1981–82. The defendants further purchased land described in Schedule D, at village 4 / 11 Katari, from their own earnings, and the house described by the plaintiff in Schedule C is in fact their property situated on land in Schedule L. The defendants contend that the partition was finalized in Tehsildar’s Case No.29/A-27/1981-82, in which plaintiff was present and filed a reply. After due inquiry, the Tehsildar passed an order which attained finality as the plaintiff did not file any appeal. They further stated that the plaintiff was aware of Civil Suit No.19-A/84, as he was a party therein. An appeal arising out of that case is still pending. Defendants further submit that the plaintiff’s claim of 1/3 share is untenable, since much of the property is self-acquired, not ancestral. They also contend that the suit, filed in 1999 after more than 12 years, is barred by limitation and without cause of action. The plaintiff has not properly valued the suit, which he has already admitted in his statement recorded on 04.10.1999 before the Civil Judge, Sakti, that the land sold was his partition share, and therefore cannot now deny having received land in partition. Accordingly, the defendants submitted that the plaintiff has no right or interest in the disputed property, and the suit for declaration and partition is not maintainable. 6. Learned trial court upon consideration of the pleadings, evidence recorded finding that the plaintiff has successfully established his claim. Accordingly, the suit filed by the plaintiff was decreed and declared that the plaintiff has title and ownership over 1/3 share in the disputed land and house situated in villages Katari and Sonadula, as described in Schedules A, B, and C of the plaint. The plaintiff, along with the defendants, shall be entitled to obtain possession of his 1/3 separate share in the disputed property through due partition. 7. The decree and judgment passed by the trial court was challenged in an appeal by the defendants No. 1 to 3 on the grounds mentioned therein. Learned first appellate court by the impugned judgment and decree allowing the appeal in part and modifying the judgment and decree has held plaintiff, Uttam Kumar, to be owner of 1/4th share in the suit land and 5 / 11 house situated in villages Katari and Sonadula, as described in Schedules A, B, and C of the plaint, and held entitled to obtain possession of his 1/4th share by partition and separate allotment from the defendants. Aggrieved by the judgment and decree passed by learned First Appellate Court, appellants/ Defendants have filed this second appeal. 8. Learned Senior counsel for appellants would submit that there was dispute of partition of joint family property between the parties which can be ascertained from its proceedings as filed between Defendant No. 1 and plaintiff before different forums and therefore plaintiff was aware with respect to nature of dispute, however, plaintiff did not chose to claim his right of partition within time and the Civil Suit seeking partition was filed only on 02.08.1999, according to the date as mentioned in the plaint, suit is barred by limitation. She contended that the subject matter of the suit is partition of immovable property (agricultural holdings and the residential house) and therefore according to the provisions under Article 65 of the Limitation Act, the period of limitation would be 12 years, however, the suit was filed much after the order of Tehsildar which was passed on 05.01.1987. In support of her contention, she places reliance upon the decision of Hon’ble Supreme Court in the case of Rajeev Gupta and others vs. Prashant Garg and others reported in (2025) SCC OnLine SC 889, Rajpal Singh vs. Saroj (deceased) through Lrs, and others reported in (2022) 15 SCC 260. 9. Mr. H.S. Patel, learned counsel for Respondent No. 1 would vehemently oppose the submission of learned counsel for appellants and would submit that there was no agreement of partition between the parties at any point of time and even in the proceeding filed before the Tehsildar for partition of agricultural holdings under Section 178 of the Chhattisgarh Land Revenue Code, 1959, after notice in reply to the pleadings has taken a specific stand that there was no partition between the parties. He contended that based on the order of partition of the Tehsildar, sale deed executed by the plaintiff 6 / 11 was put to challenge by Defendant No. 1. The said Civil Suit was dismissed by the Trial Court in Civil Suit No. 19-A/84 vide judgment and decree dated 18.12.1999 observing that the fact of partition between the parties was not found to be proved. He also contended that as in Civil Suit No.19-A/84, decided on 18.12.1999, the Trial Court categorically held that partition between the parties was not proved, and this finding was affirmed in appeal on 24.12.2007. Therefore, the suit filed in the year 1999 immediately after such decree cannot be said to be beyond the period of limitation or after 12 year negating rights of plaintiff of partition. He contended that in the Suit, it is specifically pleaded that when plaintiff has approached defendant No. 2 asking for some money in the year 1999 for the purpose of marrying his daughter, he enquired about the land and then he came to know that the land of only two khasra numbers were in his name whereas other ancestral lands were mutated in the name of defendants and thereafter the civil suit was filed claiming 1/3rd share of the entire suit land. 10. I have heard learned counsel for the parties and perused the documents placed on record. 11. It is not in dispute that in Civil Suit No.19-A/84, filed by defendant No.1, the Trial Court vide judgment and decree dated 18.12.1999 held that partition between the parties was not proved. That judgment attained its finality as it was affirmed in first appeal. Once the Civil Court has held that no partition was proved, the plea of an earlier partition by order of the Tehsildar loses its force. 12. The only issue for consideration of this Court is whether the plaintiff’s claim is barred by limitation on account of the alleged earlier partition and order of the Tehsildar, Sakti dated 05.01.1987 (Ext. D-16). Appellants have relied upon the said order to contend that the plaintiff had already received his share and thereafter ceased to be a coparcener. However, perusal of record would show that in Civil Suit No.19-A/84, filed by defendant No.1 himself, the Civil Court categorically recorded a finding that partition 7 / 11 between the parties was not proved. Said judgment Ext. P-3, dated 18.12.1999, was taken into consideration in appeal and affirmed by the Appellate Court on 24.12.2007 in Civil Appeal No. 8-A/2000. Once the competent Civil Court has held that partition was not proved, and that finding has attained finality, it is no longer open to the appellants to raise the plea of a prior partition. The order of the Tehsildar of partition was under the Chhattisgarh Land Revenue Code, cannot override the judicial finding in civil suit by competent civil court. 13. Article 65 in the Limitation Act provides for period of limitation for the possession of immovable property or any interest therein based on title, the period prescribed for filing of the suit for possession is 12 years. The time prescribed is from the date of possession of defendants become adverse to the plaintiff. 14. On the aspect of limitation, learned counsel for appellants/defendants has argued that the plaintiff’s claim is hit by Article 65 of the Limitation Act, 1963, as the suit was filed in the year 1999, ie., more than 12 years after the order of Tehsildar of the year 1987. This submission cannot be accepted. In cases of joint Hindu family property, the law is well settled that possession of one coparcener is presumed to be on behalf of all. The limitation would start only from the date of clear ouster or unequivocal hostile possession against the other. Hon’ble Supreme Court in the matter of Vidya Devi alias Vidya Vati (Dead) through LRs vs. Prem Prakash & Ors reported in 1995 (4) SCC 496 has held as under: “21. Normally, where the property is joint, co- sharers are the representatives of each other. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, 8 / 11 provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition. 22. “Adverse possession” means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. (See : Gaya Parshad Dikshit v. (Dr) Nirmal Chander [(1984) 2 SCC 286 : AIR 1984 SC 930] .) The denial of title of the true owner is a sign of adverse possession. In Ejas Ali Qidwai v. Special Manager, Court of Wards [AIR 1935 PC 53 : 1935 All LJ 744] it was observed: “The principle of law is firmly established that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.” 15. Hon’ble Supreme Court in Darshan Singh v. Gujjar Singh reported in (2002) 2 SCC 62, and more recently in Rajpal Singh v. Saroj reported in (2022) 15 SCC 260, has reiterated that mere assertion of partition or exclusive possession does not amount to ouster. There must be cogent evidence of exclusion, denial of rights, or conduct hostile to the interest of the other coparcener. 16. Hon’ble Supreme Court in the matter of Saroop Singh v. Banto and others reported in 2005 (8) SCC 330 has held that in the light of Article 65 of the Limitation Act, 1963, the plaintiffs have to prove their title and it is for the defendant to prove title by adverse possession and in terms of Article 65 of the Limitation Act, 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiffs, but commences from the date the defendant's possession becomes adverse. Paragraphs 28, 29 and 30 of the said judgment are as under: - 9 / 11 "28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff- respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. 29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376] .) 30. “Animus possidendi” is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita [(2004) 1 SCC 271] , SCC para 21.)" 17. This view has been approved and followed by the Hon’ble Supreme Court in the matter of M. Durai v. Muthu and others reported in (2007) 3 SCC 114 and it has been held as under: - "7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within 10 / 11 twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession." 18. In the present case, the defendants have failed to prove ouster of the plaintiff. On the contrary, evidence available on record would show that the plaintiff continued to participate in agricultural activities during sowing and harvesting seasons, which is consistent with his status as a co-sharer. There is no evidence that he was ever excluded from using the property or that his rights were denied by a hostile act. In such circumstances, the plea of limitation is not sustainable. 19. In view of above discussion, second substantial question of law is answered in negative. 20. During course of argument, learned Senior counsel for appellants submitted that as after going through the documents exhibited before the Trial Court including judgment and decree dated 18.12.1999 in Civil Suit no. 19-A/1984, Ext. P-3, wherein learned Trial Court has held that partition between the parties, was not proved and the finding of the Trial Court was not disturbed by the Appellate Court, she is not pressing Question of Law No. 1 as framed by this Court. In view of the submission made by learned Senior counsel and also considering the documents as exhibited before the Trial Court and considered by the Courts below, Question No. 1 as framed by this Court is decided in negative. Coming to the question of proportion of share, the Trial Court had erroneously decreed the plaintiff’s entitlement as 1/3rd share. The First Appellate Court, upon reappraisal of the family tree and evidence, partly modified the order of Trial Court and held that the plaintiff was entitled only to 1/4th share in the suit property and the residential house. 11 / 11 21. It is well settled that findings of fact concurrently or properly recorded by the First Appellate Court are binding in second appeal unless shown to be perverse or contrary to law and the Court should not ordinarily interfere with the said finding. In the matter of State of Rajasthan and others v. Shiv Dayal and another, reported in (2019) 8 SCC 637, reiterating the settled proposition, it has been held that when any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or based on misreading of material documentary evidence or it was recorded against any provision of law. 22. For the foregoing discussion and in view of the above settled legal proposition, I find no merit in the second appeal. Accordingly, the judgment and decree dated 15.01.2013 passed by the First Additional District Judge, Sakti in Civil Appeal No.54-A/2011 is affirmed in toto. 23. Consequently, this Second Appeal fails and is hereby dismissed accordingly. Sd/- (Parth Prateem Sahu) pwn JUDGE