1 / 5 2025:CGHC:51002 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 334 of 2016 Reserved on: 19.09.2025 Delivered on: 13.10.2025 • Smt. Sumitra Bai Wd/o Late Makhan Lal Kashyap, Aged About 62 Years D/o Late Janak Dulare, Occupation Housewife, R/o Triloki Nagar, Ward No.20, Behind Babloo Pals House, Near Chhindwara Station, Tahsil and District Chhindwara M.P. --- Appellant/Plaintiff versus 1. Motilal Kashyap S/o Late Janak Dulare, Aged About 72 Years Caste Kachhi, Occupation- Cultivation, R/o R.K.Boot Lane, Telipara, Bilaspur, Police Station City Kotwali, Tahsil And District Bilaspur, Chhattisgarh 2. Purushottam Kashyap S/o Motilal Kashyap, Aged About 28 Years House No.4, R.K.Boot Lane, Telipara, Bilaspur, Police Station City Kotwali, Tahsil And District Bilaspur, Chhattisgarh 3. State Of Chhattisgarh, through Collector, Bilaspur District Bilaspur, Chhattisgarh ---Respondents/ Defendants ____________________________________________________________ For Appellant : Mr. Ram Kumar Tiwari, Advocate For Respondents No. 1 & 2 : Mr. Rahul Mishra, Advocate For Respondent No. 3-State : Mr. Kalpesh Ruparel, Panel Lawyer Hon'ble Shri Justice Parth Prateem Sahu C.A.V. Judgment 1. This is plaintiff’s first appeal filed under Section 96 of the Code of Civil Procedure challenging the impugned judgment and decree dated 30.07.2016 passed in Civil Suit No. 22-A/ 2016 by Fourth Additional District Judge, PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA Date: 2025.10.14 16:01:24 +0530 2 / 5 Bilaspur, whereby learned Trial Court has dismissed the suit filed by the plaintiff holding it to be not proved. 2. For the sake of convenience, parties shall be referred to in terms of their status shown in Civil Suit No. 22-A/2016 before the Trial Court. 3. Brief facts of the case relevant for disposal of this appeal are that plaintiff filed a suit pleading therein that her father late Janak Dulare was owner of the property bearing Khasra No. 409/1 measuring 0.06 Acre and Khasra No. 414 measuring 0.44 acre of land. After death of her father she along with defendant No. 1, brother, and other brothers and sisters have mutually partitioned the property recorded in the name of their father in the year 1994. In partition, plaintiff got 6 dismil of land ie., 0.06 acres from Khasra No. 414/21 and she came in possession of the said portion of land as owner since partition. The land bearing Khasra No. 414/21 was recorded in the name of defendant No. 1. Her name could not be mutated in the revenue records of the aforementioned land (disputed land). When she approached defendant No. 1 for mutating her name in part of the land bearing Khasra No. 414/21, she was informed that defendant No. 1 has already sold said portion of land of Khasra No. 414/21 to defendant No. 2 and she would not get any land. She thereafter had obtained copy of sale deed and filed a suit. It is pleaded that with an intent to cause loss of property to plaintiff, defendant No. 1 has executed sale deed with ill intention secretly. She prayed for relief for declaration that the sale deed executed by defendant No. 1 in favour of defendant No. 2 to be null and void, for declaration that she is owner of land bearing Khasra No. 414/21 and for permanent injunction. It was also pleaded that defendant No. 1 is eager to sale the remaining portion of land bearing Khasra No. 414/21 measuring 750 sqft to some other person. 4. Private defendants did not appear before the Trial Court and they were proceeded ex parte. 3 / 5 5. Based on the pleadings made in the plaint, learned Trial Court has framed as many as four issues for consideration and upon appreciation of the evidence brought on record by the plaintiff, has dismissed the suit holding that plaintiff failed to prove her case. It is also observed that she failed to prove the partition between the family members taking one of the ground that though there are more than two family members in the family of late Janak Dulare, however, other brothers and sister were not examined before the Trial Court. 6. Learned counsel for plaintiff would submit that, learned Trial Court fell into error in not considering that specific pleading has been made in the plaint. Copy of Adhikar Abhilekh submitted before the Trial Court in evidence as Ext. P-2 in which name of ancestors of plaintiff shown to be owners of the land. He also contended that plaintiff being daughter of late Janak Dulare, owner of land, she was having clear right and title over the suit property and therefore she was given share in the joint family property at the time of partition in the year 1994 and allotted 6 dismil of land from Khasra No. 414/21. Learned Trial Court committed error in disbelieving evidence of witness AW-2. 7. Learned counsel for Defendants No. 1 and 2 would oppose submission of learned counsel for plaintiff and would submit that plaintiff failed to prove partition between the family members of family of late Janak Dulare. He contended that late Janak Dulare was survived by three daughters and four sons, meaning thereby there are 7 children of late Janak Dulare, however, other brothers and sisters were not impleaded as party to the suit so as to prove the fact of oral partition between brothers and sisters of the land recorded in the name of their father. Learned Trial Court upon appreciating evidence has rightly concluded that the fact of partition could not be proved. Plaintiff had not filed suit for partition of the property and therefore learned Trial Court has not committed any error in dismissing the suit. 4 / 5 8. I have heard learned counsel for the parties and also perused the record of Trial Court. 9. Perusal of plaint would show that plaintiff had filed a suit mentioning defendant No. 1 to be her brother. She has not arrayed other brothers and sisters as party defendants. In the pleadings there is mention that there was mutual partition between brothers and sisters in December 1994 of the land bearing Khasra No. 409/1 and 414 situated at Bilaspur and part of the land bearing Khasra No. 414/21 fell into her share. Though there is pleading that some land has been given to her as her share in the joint family property in the year 1994, however, she has not got her name mutated in revenue records. Documents which was filed before the Trial Court to prove the pleadings made in the plaint is the sale deed executed by defendant No. 1 and defendant No. 2 as Ext. P-1 and copy of Adhikar Abhilekh as Ext. P-2, no other document is placed in record. 10. Plaintiff has examined herself as PW-2 and one Kailash Prasad Chouksey as PW-3. PW-2 (plaintiff) has made statement, recorded evidence in chief as per the pleadings made in the plaint. PW-3 in his evidence has stated that when he was called for partition, all the brothers and sisters were present. Motilal along with three brothers and four sisters were present. The property is to be partitioned in 8 shares. She further stated that the land was partitioned and 6 dismill of land was given to plaintiff after measurement. He also stated that possession of land was also given to her. Plaintiff in her evidence also stated that partition took place in the house where all the brothers and sisters were present. Kailash Prasad Chouksey, PW-3 was called for mediating. She got 6 ¼ dismil of land. She in her evidence has not stated that after mutual partition, the land was measured. Both the witnesses have not mentioned name as to who measured the land, when and what time. 5 / 5 11. Admittedly, as stated by witnesses, apart from plaintiff and defendant No. 1, there were six other brothers and sisters. They have neither been impleaded as defendants nor they have been called as witnesses by the plaintiff to prove the fact of partition between the family members in the year 1994. 12. The facts pleaded are required to be proved by admissible evidence to be brought on record by the person asserting it. The case of plaintiff is based on earlier mutual partition between family members in the year 1994. The suit was filed in the year 2015 and cause of action also arose in 2015. Since last more than 20 years, plaintiff did not choose to get her name mutated in revenue record nor she has made statement that she had made any attempt for mutating her name earlier. 13. In the aforementioned facts of the case and evidence brought on record, the finding recorded by the Trial Court that plaintiff failed to prove the fact of partition by admissible piece of evidence and in absence of examining other brothers and sisters as witnesses or impleading them as defendants cannot be said to be erroneous or perverse to the evidence available on record. 14. For the foregoing discussion, in the opinion of this Court, there is no illegality or perversity in the finding recorded by the Trial Court in the impugned judgment. 15. Accordingly, the appeal being sans merit is liable to be and is hereby dismissed accordingly. Sd/- (Parth Prateem Sahu) Judge pwn