1 2025:CGHC:50665 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 672 of 2015 1 - Mohar Sai S/o Late Ramnath, Aged About 68 Years R/o Village Katgi, Tahsil Kasdol, Dist. Balodabazaar, Chhattisgarh ...........Defendant No.1, 2 - Mohan Lal S/o Hemnath Dewangan, Aged About 56 Years R/o Village Katgi, Tahsil Kasdol, Dist. Balodabazaar, Chhattisgarh ...........Defendant No.2, 3 - Heera Singh S/o Hemnath Dewangan, Aged About 52 Years R/o Village Katgi, Tahsil Kasdol, Dist. Balodabazaar, Chhattisgarh ...........Defendant No.3, --- Appellants versus 1 - Chhedilal Dewangan S/o Shri Ramnath Dewangan, Aged About 60 Years R/o Village Amodi, P.S. And Tahsil Kasdol, Dist. Balodabazaar Bhatapara, Chhattisgarh, Presently R/o Village Jhiriya, P.S. And Tahsil- Simga, Dist. Balodabazaar Bhatapara, Chhattisgarh ..........Plaintiff, 2 - State Of Chhattisgarh, Through Collector Balodabazaar, Dist. Balodabazaar Bhatapara, Chhattisgarh ..........Defendant No.5. --- Respondents ____________________________________________________________ For Appellant : Mr. H.B. Agrawal, Sr. Advocate with Ms. Swati Agrawal, Advocate For Respondent No.1 : Mr. Sandeep Patel, Advocate For Respondent No.2 : Mr. U.K.S. Chandel, Dy.A.G. Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 10.10.2025. 1. This second appeal U/s.100 of C.P.C. is filed by appellants/defendants questioning the legality and sustainability of the impugned judgment and decree dated 11.09.2015, passed in Civil Appeal No. H-71A/2014, BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.10.29 12:05:24 +0530 2 whereby, learned District Judge, Balodabazar-Bhatapara (C.G.) allowed the appeal filed by plaintiff arising out of the judgment and decree dated 18.09.2014, in Civil Suit No.99-A/2011 wherein learned Civil Judge Class -1, Kashdol, District – Balodabazar partly allowed the suit of the plaintiff. 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 appellant/plaintiff filed a civil suit seeking relief of declaration of title, partition and permanent injunction of land bearing Kh. No.1001/1 (area 0.789 hectare) and Kh. No. 1133 (area 0.210 hectare) and Kh. No.1259/1 (area 0.579 hectare), situated at village Amodi, P.C. No.16, Tahsil Kashdol, District Balodabazar Bhatapara. It was pleaded that plaintiff being a government servant residing outside. Father of plaintiff and defendants were cultivators of villages Katgi and Amodi. After deaths of Ramnath and Hemnath, plaintiff and defendants inherited all movable and immovable properties. In Amodi, lands recorded under Khasra Nos. 1000/1, 1133, and 1259/1, totaling 1.578 hectares, belong to them. However, the land has not been partitioned between the parties. The defendants, in connivance with the revenue officials, got the suit land mutated in their names by falsely claiming that the land had been partitioned. Plaintiff never consented for mutation or partition of land. While plaintiff was residing out of village in his service, defendants in collusion with revenue officials, submitted an application for mutation without his consent and completed the proceedings within 15 days. It was further pleaded that plaintiff only 3 came to know about illegal mutation and partition of land only on 03.06.2005 upon receiving a certified copy from the tehsil office. It was further pleaded that defendants, acting fraudulently and in collusion with revenue officials, sold the land of plaintiff situated at village Katgi and Amodi without his consent. It was further pleaded that plaintiff filed a civil suit for declaration of sale deed dated 04.05.2005 and 05.05.2005 to be null and void, which is pending consideration. It was further pleaded that defendants have threatened to transfer the land again. Therefore, the plaintiff has filed the suit. 4. Defendants filed their written statements and denied the plaint allegation. It was pleaded that partition had been taken place 50 years ago between the father of defendants and Ramnath. The properties had been divided into two equal shares between Ramnath and Hemnath and further share of each brother had been divided amongst their sons. Partition on mutual understanding between appellants/defendants and respondent/plaintiff had been taken place on 20.12.1986 and on the basis of mutual partition, mutation of land in their name had also been done. The land situated at village Katgi which has been sold by Mohar Sai was his share and recorded in his name, thus there was no illegality in selling the said land which fell under his ownership right. 5. Learned trial Court based on the pleadings made by respective parties, formulated as many as 7 issues for consideration. After conclusion of trial and upon careful appreciation of the oral and documentary evidence adduced by the respective parties, learned trial Court partly allowed the suit filed by the plaintiff. 4 6. The Judgment and decree passed by learned trial Court was put to challenge in appeal U/s. 96 of the Code of Civil Procedure by the plaintiff and learned first Appellate Court allowed the appeal filed by the plaintiff by impugned judgment and decree setting aside the judgment and decree of learned trial Court, which made the appellants/defendants to file this appeal. 7. Learned counsel for appellants/defendants submits that learned First Appellate Court has erroneously allowed the appeal filed by the respondent No.1/plaintiff and have passed the order of equal share in the property situated at Amodi. He contended that it is not in dispute that the property situated at village Amodi is an ancestral property. Referring to the family tree it is argued that Girdhari and Ramchandra were two brothers. Plaintiff is belonging to family of Ramchandra and defendants are also from the family of Ramchandra, however, defendant No.1 is brother of plaintiff and defendants No.2 and 3 are sons of uncle – Hemnath of plaintiff. The partition took place about 50 years ago between Girdhari and Ramchandra. He contended that partition accepted by the plaintiff is admitted by him by way of an agreement (Ex.D-1), therefore, the plaintiff cannot claim further partition of ancestral property which was earlier partitioned and accepted by him. It is also argued that it is for the plaintiff to prove the case that the partition is not affected between the family members in which he utterly failed. In support of his contention, he placed reliance upon the decision in case of P. Gnanambai Vs. S. Indiradevi, reported in 2014 Supreme (Mad) 3909. 5 8. Learned counsel for respondent No.1 would vehemently oppose the submission of learned counsel for the appellants and would submit that the learned First Appellate Court after re-appreciation of the evidence as brought on record by the respective parties including Ex.P-1 and Ex.D-1 and the evidence of witnesses have rightly concluded that the execution of agreement (Ex.D-1) relied upon by defendant is suspicious when one of the party with whom the partition is said to be affected is not a signatory and further the signature in Ex.P-1 is denied by the plaintiff. He also contended that the signature in front page of the agreement is in different handwriting and on the backside of the said document is in different handwriting. From bare perusal of the said document it is apparent that both the signatures are not of one and same person. He also contended that prior to the mutation of names of defendants based on Ex.D-1, the said property was jointly recorded in the name of family members. Plaintiff was not residing in the village where the property was situated as he was in government job and to discharge his duties he has to reside at the place of posting. Behind the back all the exercise of mutation of name has been done. The document which is relied upon for mutation of the name though it bears the name of plaintiff, however, there is no signature of the plaintiff in the said document, therefore, the said document is not binding upon the plaintiff. Referring to the evidence of Mohar Sai (D.W.-1) it is argued that this witness admitted that he can identify the signature and denied the signature in the document under the heading of Batwarnanam of the year 1995. He also denied the suggestion that in the said Batwaranama, Heera Singh and Mohan Lal have also signed. Referring to the further admission of said witness, 6 Mohar Sai (D.W.-1) it is argued that this witness has clearly admitted that in Ex.D-1 i.e. Batwarnana based upon which mutation entry was recorded, there is no signature of plaintiff. The impugned judgment and decree passed by learned First Appellate Court is on appreciation of evidence available in record, hence, it does not call for any interference. 9. I have heard learned counsel for parties and perused record of trial Court as well as First Appellate Court. 10. This appeal was admitted for hearing on following substantial questions of law :- (I) Whether the First Appellate Court was justified in reversing the finding recorded by the trial Court with regard to partition without referring the case to handwriting expert for verification raising doubt over Ex.D-1, which is in violation of Section 45 of the Indian Evidence Act.? (II) Whether the trial Court as well as the First Appellate Court have erred in holding that alleged partition effected between the parties in the year 1995 as per Ex.P-1 is not a legal partition?” 11. Perusal of the pleadings made in the plaint would show that plaintiff has pleaded that father of plaintiff and defendants were having immovable property at village Katgi and Amodi. After death of Ramnath and Hemnath, property was recorded in the joint name of plaintiff and defendants. It is also pleaded that property, situated at village Amodi is also recorded in the joint name of parties to the suit and the subject matter of the suit is only the property of village Amodi. 7 There is no pleading in the suit about the property of village Katgi. In relief clause also, relief is sought with respect to the property of village Amodi only. Defendants in written statement have pleaded about the earlier partition between the parties based on the mutual partition on 20.12.1986 and further that along with the property situated at village Katgi, others property have also been partitioned. It is further pleaded that plaintiff was aware of the partition between his father Ramnath with Hemnath, therefore, he signed the agreement dated 20.12.1986. Perusal of written statement would show that case of defendant is based on the consent deed dated 20.12.1986. Plaintiffs have placed document (Ex.P-1) under heading of mutual partition of land situated at village Amodi. On the left side of the said page, there is signature of persons between whom so called mutual partition took place, in which signatures of Mohan Lal, Heera Singh, Mohar Sai and witness Chamar Das (Kotwar) are present. Perusal of the Ex.P-1 would further show that plaintiff is named as party No.4 in the said proceedings, however, his signature is not appearing in the said documents. In the aforementioned facts of the case, even if any partition between persons as mentioned therein ever recorded, but whether it can be binding upon one of the person named therein, who is not the signatory of that document is a question to be considered. Ex.P-2 is mutation entry made by Tahsildar Kashdol on 20.08.1995. Contents of said mutation entry would show that it is made based on the application submitted by applicants therein based on successory rights. It is also recorded that it is based on separate possession of the parties on their lands and Ex.P-3 is a revenue entry mentioning that it 8 is recorded based on mutual partition and the consent deed dated 01.08.1995. 12. At this stage, learned senior counsel for appellants/defendant would submit that documents (Ex.P-3) mentions that part of Kh. No.1259 was received by Chhedilal, which shows that plaintiff Chhedilal has accepted the land situated at village Amodi in partition and is in peaceful possession, therefore, at this stage it cannot be said that there was no partition between the family members. 13. In the preceding paragraphs, this Court has considered that document (Ex.P-1) does not bear the signature of plaintiff, Chhedilal and revenue entry is based on the document (Ex.P-1), which is disputed by plaintiff, therefore, in the opinion of this Court merely recording an entry by the revenue officer will not be a proof that there was mutual partition between the parties in absence of proper proceedings drawn by recording statement of parties. Document (Ex.D-1) is copy of agreement said to have been written under the signature of plaintiff, however, plaintiff has denied the signature therein. 14. At this stage learned counsel for respondent/plaintiff have submitted that one another partition suit was filed between the parties and in that case, suit was though dismissed, however, appeal was allowed against which second appeal was preferred and High Court considering that no admissible document is available to presume that partition was ever affected between Girdhari Lal and brother Ramchandra, the predecessors in the interest of the parties. In above facts of the case case, no reliance can be placed upon the alleged document (Ex.D-1), which was said to be executed between plaintiff 9 Chedilal and his real brother Mohar Sai. Document (Ex.D-1) in this case is a document said to have been executed between Mohar Sai and plaintiff. In one of the proceedings, coordinate Bench of this Court has already recorded a finding that document is not admissible and further that partition is pure finding of fact and on due appreciation of the evidence, the said appeal was dismissed. 15. Considering entirety of the facts of the case, there was no signature in document (Ex.P-1) of plaintiff and further the document Ex.D-1 could not be relied upon to be a validly executed document in absence of signature of Mohar Sai, real brother of plaintiff, who is named therein in absence of proper proceedings by revenue court by recording statement of parties in proof of document placed before it and further that in earlier proceedings Second Appeal No.675 of 2015 in its judgment dated 17.04.2017, Co-ordinate Bench has recorded finding that partition between Chhedilal and his brother Ex.D-1 therein, no reliance can be placed, in the opinion of this Court both the questions of law are decided in negative. 16. For the foregoing discussions, the appeal fails and it is accordingly dismissed. Sd/- (Parth Prateem Sahu) Judge Balram