1 2025:CGHC:52119 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 358 of 2015 1. Roman Prasad And Ors. S/o Sunher Gond Aged About 32 Years R/o Village Angari, Tehsil Balod, Present District Balod Chhattisgarh. 2. Shambhu Ram S/o Sunher Gond Aged About 29 Years R/o Village Angari, Tehsil Balod, Present District Balod Chhattisgarh. 3. Fulan Bai D/o Sunher Gond Aged About 35 Years R/o Gundardehi Tehsil Rajnandgaon, Distt. Rajnandgaon Chhattisgarh 4. Nand Kumar S/o Sunher Gond Aged About 33 Years R/o Village Angari, Tehsil Balod, Present District Balod Chhattisgarh. 5. Itwari Ram S/o Sunher Gond Aged About 30 Years R/o Village Angari, Tehsil Balod, Present District Balod Chhattisgarh. 6. Gita Bai D/o Sunher Gond R/o Village Angari, Tehsil Balod, Present District Balod Chhattisgarh. 7. Sukhiya Bai W/o Sukalu Ram Gond Aged About 70 Years R/o Village Angari, Tehsil Balod, Present District Balod (CG) ... Appellants versus 1. Girdhari S/o Uderam Gond Aged About 50 Years R/o Khairwahi, Tehsil Gurur, Present District Balod Chhattisgarh. 2. Girwar S/o Uderam Gond Aged About 53 Years R/o Khairwahi, Tehsil Gurur, Present District Balod Chhattisgarh SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 3. Mohan Lal S/o Uderam Aged About 45 Years R/o Khairwahi, Tehsil Gurur, Present District Balod Chhattisgarh 4. State Of Chhattisgarh Through Collector Distt. Durg At Present Distt. Balod Chhattisgarh 5. Mohan Lal S/o Sukalu Gond R/o Village Angari, Tehsil Balod, Present District Balod Chhattisgarh. ... Respondents For Appellants : Mr. Sanjay Patel, Advocate For Respondent No.1 & 3 : Mr. Mayank Chandrakar, Advocate For Respondent No.4 : Mr. Kulesh Sahu, Govt. Advocate SB:Hon'ble Mr. Justice Parth Prateem Sahu Judgment on Board 14.10.2025 1. Defendants/appellants have preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity “CPC”) against the judgment and decree dated 20.2.2015 passed in Civil Appeal No.6400020-A/2014 by which learned Additional District Judge, Balod allowed the appeal of plaintiffs/respondents No.1 to 3 herein filed against the judgment and decree dated 16.11.2011 passed in Civil Suit No.16A/2010. 2. Facts of the case, in brief, are that land bearing Khasra No.109/4 area 0.275 hectare situated in village Angari and land bearing Khasra No.508/7 area 0.506 hectare situated in village Chichbod was owned and possessed by Barsan son of Bundkar, who is predecessor of the parties to the suit. Out of income from aforementioned lands, said Barsan had 3 purchased land bearing Khasra No.482 & 482 area 0.753 and 0.235 hectare respectively, situated in village Chichbod. After the death of Barsan, his widow Pattaiyabai and children namely Sunher, Sunheri, Banwasabai and Sukhiyabai succeeded to aforementioned property. As per family settlement, 25 decimal land situated in village Chichbod was received by Banwasa Bai over which she was in possession during her lifetime and after her death, the plaintiffs being her legal representatives came into possession. In the year 2007-08 defendant No.1 and 2 took possession of said land received by Banwasa Bai in family settlement on the pretext that it s recorded in their name. On inquiry being made, plaintiffs came to know that in the year 2004 legal representatives of Sunher and Sunheri got mutated the suit land in their names without giving intimation to Banwasa Bai. Thereafter, plaintiffs preferred an appeal against the mutation order passed by the Tahsildar which was dismissed by the Sub-Divisional Officer, Balod. It was further pleaded by the plaintiffs that after death of Barsan, his legal representatives including Banwasa Bai received equal share in his properties and after death of Banwasa Bai, the plaintiffs have acquired right, title and interest. Hence, the plaintiffs are entitled for one-fourth share in the suit property. 4 3. Defendants filed written statement denying the averments made in plaint. It was pleaded that land situated in village Chichbod is self-earned property of Sunher and Sunheri. Hindu Law does not apply to the parties. In the year 1980-81 partition took place between Sunher and Sunheri. Banwasa Bai and Sukhiya Bai refused to take share in partition and instead accepted money. Banwasa Bai was never in possession of suit land. In the year 2004 she herself submitted an application for deleting her name and hence, legal representatives of Banwasa Bai, have no right. 4. On the pleadings of the parties, the trial Judge framed as many as six issues; given opportunity to the parties to adduce evidence, both oral and documentary, and after a full fledged trial rendered a decision non-suiting plaintiff recording that the suit property is not the joint ancestral property, it is already recorded in the name of legal representatives of Sunheri upon refusal and relinquishment of share by Banwasa Bai in suit property. 5. Appeal preferred by plaintiffs against the judgment and decree passed by the trial Court came to be allowed by learned first appellate Court vide impugned judgment on the ground that without there being on record any registered document of relinquishment of tittle by Banwasa Bai, without affording opportunity of hearing to her, as signature of 5 Banwasa Bai does not appear in proceeding of Ex.P-8 wherein it is recorded that Banwasa Bai does not want to take her share in property, conclusion arrived by learned trial Court only on the basis of averments made in written statement filed on behalf of Sukhiya, is erroneous. 6. Learned counsel for appellants/defendants submits that plaintiffs filed civil suit seeking relief for declaration of title, partition of one-fourth share in the suit property, permanent injunction and possession on the ground that they are legal heirs of Banwasa Bai (since deceased). Defendant No.8- Sukhiya Bai was sister of Banwasa Bai. Defendant Nos.1 to 7 are legal heirs of other two brothers of Banwas Bai by name Sunher and Sunheri. It is submitted that Banwasa Bai claimed share from the property owned by her father Barsan, who died intestate about 40 years ago from the date of filing of civil suit. It is contention of learned counsel for appellants that prior to filing of suit, in the proceeding recorded by the Naib Tahsildar, Banwasa Bai, mother of plaintiffs, has relinquished her rights and therefore his name was not mutated in revenue records. In support of his submissions, he referred to document Ex.P-8 which is copy of mutation record issued by the office of the Naib Tehsildar. He next contended that learned trial Court taking note of the proceedings of Ex.P-8, dismissed the suit recording that 6 plaintiffs are not entitled for share of their mother Banwasa Bai. Learned first appellate Court reversed the finding of learned trial Court on extraneous consideration, taking note of Section 17 of the Registration Act, observing that relinquishment of right on the immovable property can only be by way of registered document which in the facts of the case is erroneous. 7. Learned counsel appearing on behalf of respondents No.1 and 3 opposes submissions of learned counsel for appellants and submits that learned first appellate Court upon appreciation of pleadings, evidence (oral and documentary) brought on record by respective parties arrived at a conclusion that finding recorded by learned trial Court is not sustainable. He also contended that learned first appellate Court has also taken note of the fact that learned trial Court has taken note of written statement submitted by defendant No.8, one of sisters of Banwasa Bai, and rightly concluded that relinquishment of right/title over suit property is not proved as there was no registered document executed by Banwasa Bai. He pointed out that learned first appellate Court has also taken note of the mutation record Ex.P-8 and observed that there is no signature of Banwasa Bai. 8. I have heard learned counsel for the parties and perused record. 7 9. This appeal was admitted on following substantial question of law:- “Whether the first appellate Court was correct in reversing the finding of trial court to hold plaintiffs, who were claiming through Banvasa Bai daughter of Barsan are entitled to the entire partition and share over the suit land?” 10. In the plaint, plaintiffs have categorically pleaded that the property, description of which is mentioned therein, is of Barsan son of Bundkar by caste Gond. Barsan was survived by two sons and two daughters, namely, Sunher, Sunheri, Banwasa and Sukhiya. Barsan died in the year 1990-91. According to pleadings, Banwasa Bai died in the year 2005. 11.To prove the pleadings made in plaint, plaintiffs have examined Girdhari as PW-1, Nandkumar as (PW-2). Perusal of order sheet dated 3.11.2011 would show that on that date, PW-1 appeared for his cross-examination, however, no one appeared on behalf of defendant No.1, 2, 4 to 8 and 10. The case was adjourned for post-lunch session and at that time also none appeared for the aforementioned defendants and therefore, they were proceeded ex-parte and PW-1 was discharged. 12. From the aforementioned facts it is appearing that defendant No.1, 2, 4 to 8 and 10 did not enter into witness box to prove 8 their pleadings as made in written statement. Plea of plaintiffs that they are children of Banwasa Bai, are having right in the property of her father because they are governed by Hindu law, is not controverted and remain unchallenged. 13. Under amended provision of Section 6 of the Hindu Succession Act, daughters have been provided equal share and right in ancestral property. Relevant portion of amended Section 6 reads as under:- “6. Devolution of interest in coparcenary property-- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December,2004. 9 (2) Any property to which a female Hindu becomes entitled by virtue of sub-section(1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, not withstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition….” 14. In case of Vineeta Sharma vs Rakesh Sharma, reported in (2020) 9 SCC 1, Hon’ble Supreme Court has held in categorical terms that the daughter shall have the same equal rights in ancestral property like a son. Relevant paras of the said decision are quoted herein below for ready reference:- “56. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub-section (1) contains a non-obstante clause providing that nothing contained in the sub section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004. 60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would 10 have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. 85. The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away. "137.1.The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of 11 coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6 (1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004". 15. So far as mutation order, Ex.P-8, is concerned, Section 110 of the Chhattisgarh Land Revenue Code, 1959 (for short ‘Code of 1959’), as it stood prior to its substitution by CG Act No.6 of 2022 w.e.f. 4.5.2022, provides procedure to be followed in mutation proceedings. Relevant portion of Section 110 of the Code of 1959 reads thus:- “110.- Mutation of acquisition of right in field book and other relevant land records.- (1) The Patwari shall enter into a register prescribed for the purpose every acquisition of right reported to him under Section 109 or which comes to his notice from intimation from Gram Panchayat or any other source. (2)The Patwari shall intimate all the reports regarding acquisition of right received by him under sub-section (1) to the Tahsildar within thirty days of the receipt thereof by him. (3) On receipt of intimation from Patwari under sub- section (2), the Tahsildar shall have it published in the village in the prescribed manner and shall also give written intimation thereof to all person appearing to him to be interested in the mutation and also to such other person and authorities as may be prescribed. 12 (4)The Tahsildar shall after affording reasonable opportunity of being heard to the persons interested and after making such further enquiry as he may deem necessary, make necessary entry in the Field Book and other relevant land records.” 16. A bare reading of above quoted provisions would show that proceedings for mutation and consequent mutation can be done on receipt of intimation under Section 109 or on receipt of intimation of acquisition of right from any other source. Upon such information being received, the Patwari shall intimate all the reports regarding acquisition of rights received by him to Tahsildar and thereupon, the Tahsildar shall have it published in Village in the prescribed manner and shall also give written intimation thereof to all persons appearing to him to be interested in the mutation and also to such other person and authorities as may be prescribed. Sub-section (4) of Section 110 of the Code provides that the Tahsildar shall after affording reasonable opportunity of being heard to the persons interested and after making such further enquiry, as he may deem necessary, make necessary entry in the Field Book and other relevant land records. 17. If the order of mutation, Ex.P-8, based upon which learned trial Court has dismissed the suit, is examined in light of above quoted provisions of Section 110 of the Code of 1959, it is clear from Ex.P-8 that the Tehsildar has passed the order in a slip shod manner without observing the procedure 13 prescribed under Section 110 of the Code of 1959. Firstly, there is no mention in the order, Ex.P-8, about conducting any enquiry or scrutiny regarding the claim made by Sunher and Sunheri, predecessor of appellants herein. Secondly, it is not reflecting from Ex.P-8 that upon receipt of intimation from Patwari under sub-section (2), the Tahsildar had given written intimation to Banwasa Bai, and thereafter reasonable opportunity of being heard was afforded to her. 18. Perusal of Ex.P-8 would clearly show that though name of Banwasa Bai is mentioned to be legal representative of Barsan, however, in the said document there is no signature of Banwasa Bai. There is also no mention that statement of the parties/ legal representatives is recorded or statement of person who is relinquishing share in the joint property is recorded. In absence of signature in proceeding of Ex.P-8 drawn by the Naib Tehsildar mentioning that other co-sharers are intended to record their names based on previous partition, is not admissible because it is not recorded following due process of law. Before this Court also no argument/ objection is raised with regard to Banwasa Bai to be daughter of Barsan and property mentioned in the suit to be ancestral property and owned by Barsan during his lifetime. 19. Thus, it appears that the order of mutation (Ex.P-8) has been passed by the Tahsildar de hors the provisions of Section 110 14 of the Code of 1959 because the procedure of issuing written notice to the persons interested in mutation proceeding and conducting enquiry as provided under Section 110 of the Code of 1959, has not been followed by the Tahsildar before passing the order of mutation. 20. In view of aforementioned discussions and considering the contents of Ex.P-8, I do not find any error in the impugned judgment of learned first appellate Court holding that respondents No.1 to 3/plaintiffs are entitled to get 1/4th share in the suit property and separate possession thereof after partition in accordance with law. 21. Accordingly, sole substantial question of law framed by this Court is answered in affirmative i.e. in favour of plaintiffs and against the defendants. 22. Consequently, this second appeal is dismissed. A decree be drawn up accordingly. Sd/- (Parth Prateem Sahu) Judge roshan/-