1 2025:CGHC:54732 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 103 of 2013 1 - Rambilas S/o Late Jirjodhan Aged About 55 Years Caste - Nai, R/o Village- Khorama, Police Station And Tahsil Pratappur, Distt. Surajpur C.G. ... Appellant Versus 1 - Smt. Subhagiya (Deleted) As Per Hon’ble Court Order Dated 04-10-2024 2 - Smt. Hirmaniya Wd/o Late Shri Thakur Aged About 55 Years R/o Village- Puhputara, Tahsil & Police Station Lakhanpur, Distt. Sarguja C.G. 3 - The Government of Chhattisgarh Through - The Collector, Surajpur, Police Station Surajpur, Distt. Surajpur C.G. ... Respondent(s) For Appellant : Shri Sanjay Pathak, Advocate. For Respondent No.2 : Shri Rahul Mishra, Advocate. For State : Shri Ajay Kumrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 10.11.2025 1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the appellant against the impugned judgment and decree dated 30.11.2012 passed by the Additional District Judge, Pratappur, District Surajpur in Civil Appeal No.28-A/2012 whereby the Appeal filed by the appellant against the judgment and decree dated 25.02.2012 passed by Civil Judge Class-I Pratappur, District Surajpur, INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2025.12.19 16:49:53 +0530 2 in Civil Suit No.29-A/2011 has been dismissed and the judgment and decree of trial court has been affirmed. 2. For the sake of convenience, the status of parties shown in the Civil Suit are being taken in the present Second Appeal. 3. The plaintiff filed a Civil Suit for declaration of title and permanent injunction over the suit property shown in Schedule-A of the plaint situated at village Khorma, Tehsil Pratappur, District Surajpur by declaring the judgment and decree dated 26.11.1977 as also the memo dated 19.08.2004 issued by the revenue authority, both as null and void, inter alia with the pleading that suit property belongs to one Ganesh Nai. He was having two sons Khirmit and Jirjodhan. The defendant No.1 is the wife of Khirmit and plaintiff is the son of Jirjodhan. The defendant No.1 was issue-less. Khirmit died somewhere in the year, 1949-50 and thereafter the defendant No.1 left the family and went to her parents house and remarried with one Rama Nai of village Bojha. From the wedlock of defendant No.1 and Rama Nai, the defendant No.2 and other children were born. After death of Khirmit, since the defendant No.1 left the family of Khirmit and remarried with Rama, her right over the property of family of Khirmit is extinguished and she has no right or title over the said property. The defendant No.1 had earlier filed a Civil Suit No.19-A/1977 against Jirjodhan Nai for declaration, title and partition of the property. The father of plaintiff was not of sound mental condition and taking undue advantage of his mental status, the defendant No.1 obtained a decree on the basis of compromise between Jirjodhan and defendant No.1 vide judgment and 3 decree dated 26.11.1977. The said judgment and decree could not be executed within 12 years, however, the defendant No.1 filed an application for mutation of her name and partition of the suit property on 19.08.2004 and since the decree was not executed within its limitation, the said decree looses its efficacy and is not binding upon the plaintiff. It is the custom of the family that after death of husband if the widow is remarried, her right and title over the property of family of her late husband is extinguished. It is also pleaded that against the order passed by the Tehsildar, when the defendant No.1 moved an application for partition, the plaintiff came to know about the fraudulent act of the defendants and then he filed civil suit. 4. The defendants No.1&2 contested the suit and filed their written statement jointly and denied the plaint averment and pleaded that the defendant No.2 is the daughter born from wedlock of Khirmit and defendant No.1; marriage of defendant No.1 was performed since 40 years back; they denied that after death of Khirmit the defendant No.1 had remarried with Rama at village Bojha, but she was still residing in the house of Khirmit and occasionally used to go to her parents house. She has no relation with Rama. After death of Khirmit, when Jirjodhan tried to grab the entire property of Ganesh Nai, she filed a suit before Civil Judge, Surajpur being Civil Suit No.19-A/1977 in which the father of present plaintiff namely Jirjodhan admitted the claim of the defendant No.1 and on 26.11.1979 a compromise deed was executed between the parties and 3.50 Acres of land was given to defendants No.1&2. In that suit, he also admitted that the defendant No.2 is the 4 daughter of defendant No.1 and Khirmit Nai. The said judgment and decree passed in Civil Suit No.19-A/1977 have not been challenged by any of the parties and it attains its finality. The defendant No.1 has right and title over the land given to her through the judgment and decree passed in Civil Suit No.19-A/1977 and she is in possession of the same. The said judgment and decree is binding upon the parties and now they cannot challenge. The said decree was passed on the basis of compromise between the parties and when the plaintiff denied the right of defendants No.1&2, she filed an application before the Tehsildar Pratappur and the objection made by the plaintiff has been rejected. After hearing the parties, the Tehsildar Pratappur has passed the order for mutation of their names in the revenue records and she prosecuted the revenue case for partition and separate possession of the suit property. She also pleaded that at the time of judgment and decree passed in Civil Suit No.19-A/1977 the family of Ganesh Nai was having 14.53 Acre of land and plaintiff have sold the entire land, except 1.79 Hect. which is in the share of defendant No.1&2. Therefore, the plaintiff has no right and title over the suit property and his suit is liable to be dismissed. 5. On the basis of pleadings made by the parties, the trial court framed the following issues: dzekad fook+|d fu"d"kZ 1 D;k oknh xzke [kksjek rglhy izrkiiqj esa fLFkr ifjf’k"V&v dh Hkwfe dk ,dek= LoRo ,oa vkf/kiR;/kkjh gS izekf.kr ugh 2 D;k rglhynkj izrkiiqj }kjk 1v o 2v&6v@04&05 jktLo izdj.k esa fnukad 19-08- 2004 dks ikfjr ukekarj.k vkns’k fof/k fo:) gksus ugh 5 ls 'kwU; ?kksf"kr djus ;ksX; gS 3 D;k izfroknhx.k oknh ds vkf/kiR; ij gLr{ksi dj jgs gSA izekf.kr ugh 4 Lkgk;rk ,oa okn O;; fu.kZ; dh dafMdk 14 ds vuqlkj 6. In support of case of respective parties, the plaintiff examined himself as PW-1, Shivmangal, PW-2, Jamuna Prasad Gupta, PW-3 and Bhagmaniya Bai, PW4 and relied upon documents Ex.P/1 to P/9 which are the documents of Surguja State Settlement, Record of Right, the compromise application made in Civil Suit No.19-A./1977, the revenue order sheets and written statement filed by Jirjodhan in Civil Suit No.19-A/1977. The defendants No.1&2 have examined Hirmaniya as DW-1, Jamuna Prasad, DW-2 and Balam Kushwaha, DW-3 and relied upon documents Ex.D/1 to D/7 which are the judgment and decree passed in Civil Suit No.19-A/1977, the statement made before the court in that civil suit and revenue documents of the suit land. 7. After appreciation of oral as well as documentary evidence led by the parties, the trial court held that in Civil Suit No.19-A/1977 the father of plaintiff namely Jirjodhan was regularly appearing in the proceeding and Jirjodhan and defendant No.1&2 have jointly made a compromise application and after recording statement, the judgment and decree was passed on 26.11.1979 on the basis of compromise between the parties. Jirjodhan never challenged the said judgment and decree during his lifetime. Though the plaintiff has pleaded in the present suit that his father was not of sound mind, but in his cross examination he admits that his father was of sound mind and had full conscious and he 6 died in the year 1979-80. The defendant No.1&2 are illiterate lady and cannot be expected that they manipulated Jirjodhan to enter into compromise and after considering the statement made before the court, the decree has been passed with the consent of the parties in which 3.5 Acres of land was given to defendants No.1&2 and the plaintiff could not prove that the said judgment and decree was obtained by fraud or misrepresentation. The trial court also considered that out of total 14.53 Acres of land of late Khirmit, 1.36 Acre of land was sold to Jirjodhan and about 9 Acres of land was sold by the present plaintiff Rambilas and only about 4 Acres of land is remaining. The trial court has also held that plaintiff also failed to prove that defendant No.1 remarried with Rama and defendant No.2 is daughter of Rama. Considering the overall evidence available on record, the trial court dismissed that suit of plaintiff. 8. The First Appeal filed by the plaintiff before the appellate court was also dismissed affirming the findings recorded by the trial court holding that judgment and decree dated 26.11.1979 was passed by the trial court on the basis of compromise which is binding upon the parties and the plaintiff has failed to prove that after death of Khirmit, the defendant No.1 remarried with Rama. Hence this Second Appeal. 9. Learned counsel for the appellant would submit that the courts below have erred in recording the findings which are perverse to the record. The evidence produced by the plaintiff clearly shows that after death of Khirmit, the defendant No.1 left her matrimonial home and remarried with Rama and thereafter defendant No.2 was born from their wedlock. 7 In the year 1977 the defendant No.1 kept Jirjodhan under undue influence and obtained a decree on the basis of compromise in her favour. Since the decree was passed in the year, 1979 and the same could not be executed within a period of 12 years, as provided under Article 136 of the Limitation Act, it cannot be executed now and the right & title of the plaintiff cannot be sustained over the suit property. He would also submit that the defendants have not specifically denied that Khirmit died in the year 1949-50 and at that time Hindu Succession Act, 1956 was not introduced and as per the Hindu Women’s Right to Property Act, 1937, when the widow of the deceased left the family and was not in possession of the family property, her right would be extinguished. There is sufficient evidence produced by the parties that after death of Khirmit, she remarried with Rama and therefore the judgment and decree passed in Civil Suit No.19-A/1977 was obtained under undue influence and no right and title could be transferred to the said decree which is void. Therefore, the findings of both the courts below are erroneous and thus substantial question of law is involved in this appeal for its determination. 10. I have heard the counsel for the appellant, perused the record of trial court and gone through the evidence. 11. The claim of the plaintiff is based on the fact that he is the son of Jirjodhan who is brother of Khirmit. Khirmit died in the year 1949-50 and after his death his wife i.e. the defendant No.1 remarried with Rama and as such her right and title over the property is extinguished. However, the defendants have contested that defendant No.1 never 8 married with Rama. The defendant No.2 is the daughter of defendant No.1 and Khirmit. It is also the defence of the defendants that in the year, 1977 a compromise decree was passed between the defendants and Jirjodhan in Civil Suit N.19-A/1977 which has never been challenged and it attains finality. By the said compromise decree, 3.50 Acres of land was given to defendants over which they are having right and title. Out of 14.53 Acres of land, Jirjodhan already sold 1.36 Acres and plaintiff Rambilas have sold about 9 Acres of land. As per document Ex.P/4, which is the compromise application between the defendants No.1&2 and Jirjodhan, the defendant No.1&2 was entitled for 3.50 Acres of land and she was entitled for mutation and partition of the said land. Based on compromise application, the judgment and decree was passed on 26.11.1979. The defendants have also filed a document Ex.D/3 which is the statement made in that Civil Suit with respect to compromise between the parties and the statement of Hirmaniya and N.K. Shashtri, who was counsel of Subhagiya Bai (defendant No.1) and the statement of Jirjodhan. Jirjodhan duly admitted the terms and conditions of compromise with the defendants No.1&2. 12. The plaintiff Rambilas also admits that defendants No.1&2 had filed a suit against his father before the Civil Court Surajpur and his father was appearing in the proceeding of the case. His father died in the year, 1979-80. He also admits that his father was not of unsound mind and he was in good mental condition during his lifetime. In that Civil Suit his father had appointed a counsel. He also admits that he has not 9 filed any birth certificate of Hirmaniya. He did not know when Hirmaniya was born. 13. PW-2 have also stated that he did not know about marriage with Subhagiya and Rama Nai and he stated on the basis of information received from others. He was not present on the date when compromise was taken place in Civil Suit No.19-A/1977. 14. PW-3 is also a witness in support of plaintiff, however, he too have stated that he did not know as to when Hirmaniya born. He also did not know about marriage of Jirjodhan or Khirmit Nai. He is not having any personal knowledge of marriage of Subhagiya and did not know about any civil suit pending before the defendants No.1&2 and Jirjodhan. 15. PW-4 Bhagmaniya have also stated that she did not know what was written in her affidavit of chief examination. At the time of marriage between Khirmit and Subhagya she was aged about 15-16 years. When she was aged about 6-7 years, a daughter was born from Khirmit. She admits that defendant No.1&2 filed a Civil Suit against Jirjodhan, but she shown her ignorance as to whether Jirjodhan compromised in that suit or not. 16. The main ground of the plaintiff in the suit is that, after death of Khirmit the defendant No.1 left her matrimonial house and went to her parents house and remarried with Rama, however, the plaintiff could not establish the fact that after death of Khirmit, the defendant No.1 remarried with Rama. The defendant’s plea that in Civil Suit No.19-A/1977 Jirjodhan has compromised the matter and decree has been passed in their favour with respect to 3.50 Acres of land which 10 has been admitted by the plaintiff also though he challenged the same on the ground that it was passed by fraud and collusion, however, the decree was passed on the basis of compromise between the parties and statements were recorded before the Court. Jirjodhan did not challenge the decree during his lifetime and even up till filing of the suit, the plaintiff has not challenged that judgment and decree which was passed on the basis of compromise. 17. The judgment and decree passed by the trial court as well as first appellate court is based on proper appreciation of evidence led by the parties and since the plaintiff has failed to establish that after death of Khirmit, the defendant No.1 got remarried with Rama & defendant No.2 born from Rama, further the compromise decree supported the case of defendants, this court does not find any perversity in the impugned judgment and decree passed by the courts below. No question of law much less substantial question of law is involved in the case to be determined by this court. 18. Accordingly, the Second Appeal is dismissed without noticing other side. The parties shall bear their own cost. Sd/- (Ravindra Kumar Agrawal) Judge inder