1 2025:CGHC:61959 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on 26.9.2025 Judgment delivered on 19/12/2025 SA No. 175 of 2013 1. (Died), Smt. Sawana Bai, Through Legal Heir As Per Honble Court Order Dated 13-09-2024 1.1 - (A) Amru Sahu S/o Asai Sahu Aged About 65 Years R/o Village - Manikchouri, Thana Pipariya, Tahsil Kawardha, District Kawardha (C.G.) ... Appellant versus 1. Smt. Urmila Bai Anors W/o Panchram Sahu Aged About 45 Years R/o Singhanpuri, P.H.No. 11, Tah. Kawardha, Distt. Kabirdham C.G., Chhattisgarh 2. State Of Chhttisgarh Thru- Collector, Kabirdham C.G., District : Kawardha (Kabirdham), Chhattisgarh ... Respondents For Appellant : Mr. Viprasen Agrawal, Advocate For Respondent No.1 : Mr. Vaibhav A Goverdhan,Advocate For Respondent No.2 : Mr. Kalpesh Ruparel, Panel Lawyer SB: Hon'ble Shri Justice Parth Prateem Sahu CAV Order 1. Plaintiff/appellant has filed this second appeal challenging legality and sustainability of the judgment and decree dated 2 01.01.2013 passed in Civil Appeal No.130A/2012 whereby learned Additional District Judge, Kabirdham (Kawardha) dismissed civil appeal filed by plaintiff preferred against the judgment and decree dated 24.9.2011 passed in Civil Suit No.13A/2010 by learned Additional Judge to the Court of learned Civil Judge Class-2, Kabirdham and allowed cross- appeal of defendant No.1/respondent No.1 herein. 2. Facts relevant for disposal of this appeal are that original plaintiff deceased Smt. Sawana Bai filed a civil suit against defendants for grant of decree of declaration of title, partition and separate possession of the land, subject matter of suit. It was pleaded in civil suit that plaintiff and defendant No.1 are sister-in-law in relation. Asai Sahu was in possession and ownership of about 8-9 acre of agriculture land situated at Patwari Halka No.11 in village Singhanpuri. He had four sons including husbands of plaintiff and defendant No.1. After death of Asai Sahu, an oral partition took place between his five sons and in that partition, Amru, husband of plaintiff, received 02.24 acre land and Panchram, husband of defendant No.1, received 02.28 acre of land. Amru and Panchram had transferred the land of their share in the name of their wives i.e. plaintiff and defendant No.1 by sale deed, without consideration. Accordingly, mutation of name of plaintiff and defendant No.1 in revenue record is done and 3 though they were in separate possession of their respective shares, however, the entire property continued to be joint holding even after oral mutual partition. Defendant No.1 had sold around 1.75 acre of land out of 2.28 acre of land received by her husband in mutual partition, to different persons and now only 0.53 acre of land is only left. However, taking advantage of non-division of joint account, defendant No.1 threatened the plaintiff to sell her share also, therefore, plaintiff submitted an application before the Tahsildar for division of joint account, which was objected by defendant No.1, and this has created a doubt upon the title of plaintiff over suit land, therefore, the necessity has arisen to file present suit. 3. Defendant No.1 filed written statement denying the averments made in the plaint. It was specifically pleaded by defendant No.1 in written statement that plaintiff has sold the entire land received by her husband in oral partition to different persons, obtained consideration and now plaintiff has left with no land, which is evident from the consent deed dated 28.3.2003 executed by plaintiff on stamp paper of Rs.50/- in which in categorical terms she admitted about selling of her entire land from time to time to different purchasers. Application submitted by plaintiff before the Tahsildar for partition has been dismissed for want of prosecution vide order dated 4 15.6.2009. Defendant No.1 is in possession and occupation of the land of her share. 4. Learned trial Court based on pleadings and evidence brought on record by respective parties, had formulated as many as six issues and upon appreciation of pleadings and evidence on record, dismissed civil suit recording a finding that Sudhu, Amru (husband of plaintiff) and Panchram (husband of defendant No.1) received total 4.52 acre of land jointly in a partition from their brothers. Issue with regard to sale of 1.75 acre of land by defendant No.1 is decided in negative. It was further held that suit is to be dismissed for non-joinder of necessary parties. However, even after recording aforementioned finding, it was concluded that Sudhu, Amru and Panchram are entitled for one-third share each in immovable property measuring 4.52 acres situated in village Singhanpuri and after partition, possession be delivered to them. 5. Judgment and decree passed by learned trial Court was put to challenge in an appeal filed under Section 96 of the Code of Civil Procedure, 1908 (for short ‘CPC’) raising a ground that learned trial Court erred in deciding Issues No.1, 3 and 4 in negative, overlooking evidence of defendant No.1 wherein she admitted the fact of partition. In appeal, it is further pleaded that learned trial Court fell into error in not 5 appreciating the evidence with regard to sale of immovable property by plaintiff and defendant No.1. It further fell into error in not evaluating as to how much property is left with plaintiff and defendant No.1. Learned trial Court erred in recording finding that sale deed executed by Amru and Panchram in favour of plaintiff and defendant No.1 to be not valid sale deed. 6. Defendant No.1 also filed cross-appeal on the ground that learned trial Court erred in granting relief in favour of the person who is not a party to the suit, nor relief which is granted, is sought for in the plaint. In cross-appeal it was also pleaded that plaintiff as also defendant No.1 has not questioned the partition and sale deed, even then learned trial Court given finding on it. 7. Learned first appellate Court dismissed the appeal filed by plaintiff, however, allowed cross-appeal filed by defendant No.1 recording that both the parties have accepted the fact of partition and plaintiff could not able to prove her case for declaration of title, partition and possession. 8. Learned counsel for appellant would submit that both the Courts fell into error in not considering pleadings and evidence available on record showing that defendant No.1 failed to prove that plaintiff has sold entire land fell into her share. Both the Courts further erred in recording a finding 6 that sale deed executed by Amru and Panchram to be not a valid sale deeds. Learned first appellate Court erred in setting aside well reasoned judgment and decree passed by trial Court of partition of one-third of immovable suit property between Amru, Panchram and Sudhu. 9. Heard learned counsel for respective parties and perused the record. 10. This second appeal was admitted on 13.12.2021 on following substantial question of law: “Whether the findings recorded by both the Courts below that the plaintiff has admitted the fact that she has sold the entire land of his share is perverse to the record?” 11. Additional substantial question of law was framed on 21.6.2022, which reads thus: “Whether the learned trial Court was justified in deciding the case on merits even after recording specific finding that Sudhu @ Siddhram and legal representative of Pusau and Buddhu are necessary party? 12. So far as first substantial question of law, as framed, is concerned, defendants have submitted document Ex.P-1 titled as ‘consent deed’, which is executed on non-judicial stamp paper of Rs.50/-. Contents of Ex.D-1 is written on 7 behalf of Sawana Bai (plaintiff) stating that she has sold entire land of her share and therefore, her name be deleted from joint holding. Ex.D-1 bears thumb impression of plaintiff, it was attested by Notary namely Shri Jagdish Singh Thakur and photograph of executant (plaintiff) is also affixed on this document Ex.D-1. This document was executed before two witnesses namely Gend Singh Sahu (Panch) and Panchram, husband of defendant No.1. Gend Singh Sahu is examined as DW-2 and he has stated about execution of document Ex.D-1. He further stated that at the time of execution of consent deed, Ex.D-1, Amru (husband of plaintiff) was also present. Suggestion given to this witness that at the time of execution of sale deed signature/thumb impression of plaintiff on Ex.D-1 is obtained fraudulent is denied. 13. Plaintiff (PW-1) in her evidence admitted that her photograph is affixed in consent deed of Ex.D-1, she put her thumb impression on it. She further admitted that at the time of purchase of stamp paper, she put her thumb impression in register of Stamp Vendor. However, she tried to clarify that it was obtained by playing fraud. She further admitted that she put her signature in register of Notary Jagdish Singh Thakur on 28.3.2003. Question is posed to this witness as to whether she lodged report or complaint against Panchram, Gendram and Urmila, to which she replied that she did not 8 lodge and further that she is seeing the document Ex.D-1 for the first time in Court. 14. In view of above evidence available in record wherein signature/thumb impression and photograph on consent deed Ex.D-1 are admitted by plaintiff to be of her own, but for saying that it was obtained by fraud, and further considering evidence of Gend Singh (DW-2), witness of document Ex.D- 1, in the opinion of this Court, the plea taken by plaintiff/appellant that signature/thumb impression of Sawana Bai appearing in consent deed, Ex.D-1, is obtained by fraud is not sustainable. There is no perversity in the finding recorded by both the Courts on the above issue. Hence, first substantial question of law, as framed, is decided against plaintiff/appellant herein. 15. So far as second substantial question of law is concerned, learned trial Court based on pleadings of respective parties, has formulated six issues for consideration. Any of the issues is not decided as preliminary issue nor there is any prayer made by any of the parties and therefore, in the opinion of this Court, no error has been committed by learned trial Court in deciding all the issues framed by it including the issue with regard to non-joinder of other co-owners of suit land being necessary parties. It is well settled that unless and until the Court comes to the conclusion that any of issues framed is to 9 be decided as preliminary issue and proceeded to consider and decide all issues formulated together then there is no bar in adopting such a procedure by trial Court. Hence, in the opinion of this Court, there is no error in procedure adopted by learned trial Court in deciding all issues formulated by it including issue of non-joinder of necessary party. Thus, second substantial question of law is also decided against the plaintiff/appellant. 16. Consequently, there is no merit in this appeal, the same is liable to be and is hereby dismissed. No order as to costs. 17. A decree be drawn-up accordingly. Record of both Courts below be sent back forthwith. Sd/- (Parth Prateem Sahu) Judge roshan/-