1 2025:CGHC:12231 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 03.03.2025 Judgment delivered on 12.03.2025 FA No. 36 of 2020 1 - Hanuman Prasad Parche S/o Late Sadanlal Parche Aged About 54 Years R/o B - 134, Basant Vihar Colony, Police Station Sarkanda, Tahsil And District - Bilaspur Chhattisgarh., District : Bilaspur, (C.G.) ... Appellant /Plaintiff versus 1 - Yadunandan Parche S/o Late Sadanlal Parche, Aged About 45 Years R/o Kasturba Nagar, Sindhi Colony, Ma Sharda Mandir, Bilaspur, Police Station - Civil Lines, Tahsil And District - Bilaspur Chhattisgarh., District : Bilaspur, (C.G.) 2 - Shyam Manohar Parche S/o Late Sadanlal Parche, Aged About 57 Years R/o Kasturba Nagar, Sindhi Colony, Ma Sharda Mandir Bilaspur, Police Station - Civil Lines, Tahsil and District - Bilaspur (C.G.) ➢ Original defendant No. 1 – Smt. Kanti Bai Parche and original defendant No. 3 – Anita Parche expired during pendency of civil suit. ➢ While filing Civil Suit Shyam Manohar Parche was impleaded as plaintiff No. 1, subsequently he was transposed from plaintiff No. 1 to defendant. ... Respondents 2 For Appellant : Mr. A.N. Bhakta, Advocate. For Respondent : Mr. Tapan Kumar Chandra, Advocate. Hon’ble Mr. Justice Naresh Kumar Chandravanshi C A V Judgment 1. This first appeal has been preferred by the appellant / plaintiff under Section 96 of the Code of Civil Procedure, 1908, challenging judgment & decree dated 15th January, 2020 passed by 7th Upper District Judge, Bilaspur (C.G.) in Civil Suit No. 148-A/2015 whereby civil suit filed by appellant / plaintiff for declaration of his joint title, possession and after partition granting him possession of his share, has been dismissed. [For the sake of convenience, parties would be referred to as per their status shown in the plaint filed before the trial Court] 2. Brief facts of the case are that appellant / plaintiff filed civil suit for declaration of his joint title, partition and possession pleading inter alia that both the parties are Hindu and are family members governed by Hindu Law. Following genealogy tree would demonstrate relationship among the parties:- 3. Father of the parties namely Sadan Lal Parche was owner of land bearing Khasra No. 47/7, area 0.06 dismil, sheet no. 4/3, Plot No. 75, area Lknu yky ikjps ¼e`r fnuk¡d 10@02@2005½ csok ifRu ‘’;ke euksagj ikjps iq= oknh Ø- 1 guqeku izlkn ikjps iq= oknh Ø- 2 ;nquanu ikjps iq= izfr- Ø- 2 vuhrk ikjps iq=h izfr- Ø- 3 Jherh dkafrckbZ ikjps ¼izfroknh Øekad 1½ 3 2622 square feet and Khara No. 47/2, area 0.012 hectare situated at Jarhabhata, Patwari Halka No. 31, Bilaspur alongwith house situated over the aforesaid land (henceforth ‘suit property’). After death of Sadan Lal Parche, suit property has been recorded in the joint name of plaintiff (s) and original defendants. No partition was effected between the parties and despite repeated request of plaintiff, defendants declined to grant partition, rather they used to quarrel with him, therefore, plaintiff filed civil suit for declaration of his joint title and possession alongwith defendants and also sought partition and separate possession of his share over the suit property. Earlier, plaintiff had sought 1/5th share, but during pendency of suit, their mother Smt. Kanti Bai (original defendant No.1 ) and sister Anita Parche (original defendant No. 3) died, therefore, the plaintiff has sought 1/3rd share in the suit property. 4. Defendants filed their written statements, in which, they did not dispute genealogical tree demonstrated by plaintiffs, they have also not disputed that suit property was owned by their father late Sadan Lal Parche, but they have denied that no partition of their family property / suit property was effected between them, rather they have pleaded that during life time of their father, he had effected mutual - oral partition between both the parties, 25-26 years prior to filing instant civil suit. Thereafter, parties were residing in their respective shares of suit property. They have further pleaded that in that mutual - oral partition effected by their father, both the parties received shares as follow : - (1) suit land bearing Khasra No. 47 7, area 0.06 acres by dividing it into two dismil (0.02 dismil) to each i.e. mother of parties namely Smt. Kanti Bai (original defendant No. 1), sister – Anita Parche (original defendant No. 3) and defendant 4 Yadunandan Parche alongwith portion of house situated in their respective shares were granted to them (2) suit land bearing Khasra No. 47/2, area 0.03 dismil and house situated over it was granted to Shyam Manohar Parche (respondent No. 2 herein) and (3) share of their father – Sadan Lal Parche received to him over his ancestral house situated at Karbala, Juna, Bilaspur and shop named & styled as “Jai Maa Sharda Spare Parts”, now renamed as “Maa Sharda Automobiles” situated at Seepat Road, near Vasant Vihar Gate, Bilaspur, was granted to plaintiff – Hanuman Prasad Parche, he is also in possession of dilapidated house situated at Karbala, Juna, Bilaspur. After partition, parties were possessed and residing in their respective shares. Thus, since partition was already effected between the parties, therefore, subsequent partition cannot be effected. Hence, the plaintiff is not entitled to get any relief. 5. The 7th upper District Judge, Bilaspur on the basis of pleading putforth by the parties, has framed as many as six issues, taken evidence adduced by the parties and after considering evidence and their contention, dismissed the suit filed by the plaintiff vide impugned judgment & decree holding therein that since mutual-oral partition has been effected between the parties of their property, during life time of their father, therefore, subsequent partition cannot be made. 6. Being aggrieved & dissatisfied with the judgment & decree passed by the trial court, the plaintiff preferred first appeal challenging the same. 7. Learned counsel appearing for the appellant / plaintiff would submit that plaintiff and defendants No. 2, original defendant No. 3 and defendant 5 No. 4 are real brothers and sisters and original defendant No. 1 is their mother. Suit property is undivided property owned by their father – Sadan Lal Parche, which has been recorded in their joint name after death of their father / husband. It is an undivided property, but learned trial Court, only on the basis of deposition of Yadunandan Parche (DW-1) & Shyam Manohar Parche (DW-3), has held that oral mutual partition was effected by their father between his wife, three sons & daughter. He further submits that as per defendants’ witness, share (300 sq.ft) of portion of ancestral house received to their father on the house situated at Khasra No. 275/1/77, total area 1200 sq.ft. and shop namely ‘Jai Maa Sharad Spare Part’ situated at Seepat Road, Vasant Vihar, Bilaspur along with the articles present in the shop worth Rs.5,00,000/- was fallen in share of plaintiff – Hanuman Prasad Parche, but defendants have not proved that aforesaid property was owned by their father late Sadan Lal Parche or they are their joint family property. He submits that in cross-examination plaintiff Hanuman Prasad Parche (PW-1) has clearly stated that in the house situated at Karbala, Juna, Bilaspur, one Rajkumar Parche @ Bholu is residing, as it was his ancestral house [ Rajkumar Parche @ Bholuu was son of Horilal, who was brother of Sadan Lal Parche]. He has also denied that 300 sq.ft. of that house was received to their father and that 300 sq.ft. was received to him in oral partition made by their father. Learned counsel for the appellant/plaintiff while referring to copy of registered sale-deed (Annexure A/4) dated 13.05.2004 filed along with application under Order 41, Rule 27 of the CPC would submit that inadvertently, the plaintiff could not produce that document before the trial Court, but that document shows that alleged shop was purchased by Har 6 Narayan Parche (son of plaintiff) from Ramdulari Nishad & others, as such, aforesaid two alleged properties said to be fallen in share of plaintiff Hanuman Prasad Parche was not a property owned by their father – Sadan Lal Parche or their joint family property. Despite that, learned trial Court without considering the aforesaid facts and without documentary evidence only on the basis of oral statements of defendants, has held that oral-mutual partition was effected between the parties is wholly perverse and illegal. He further submits that alleged relinquishment deed (Ex.D-1) allegedly executed by plaintiff is unregistered deed, therefore, it has no legal value. Despite that learned trial Court has dismissed the suit filed by the plaintiff. Whereas, since suit property is undivided property of the parties, therefore, it is prayed that appeal may be allowed and relief sought for by the plaintiff may be granted to him. 8. On the other hand, learned counsel for the defendants would submit that impugned judgment is well reasoned and based on evidence adduced by the parties, hence, it does not call for any interference of this court, therefore, the appeal is liable to be dismissed. 9. I have heard learned counsel appearing for the parties and perused the impugned judgment and decree including record of trial Court with utmost circumspection. 10. Undisputedly, both the parties are family members and successor of first category of late Sadan Lal Parche. Both the parties have stated that suit property bearing Khasra No. 47/7 and 47/2 were owned by late Sadan Lal Parche and after his death, it was mutated / recorded in the name of plaintiff and defendants. To prove this fact, plaintiff has filed “true copy” of 7 Kist Bandi Khatouni (Ex.P-1) of suit land prepared by In-charge (HkqbZ;ka), Tahsil office, Bilaspur and defendants have filed true copy (Ex.D-5) prepared by Revenue Inspector, diverted land [Urban Area], Bilaspur & “true copy” of kist bandi Khatouni (Ex.D-10) prepared by In-charge (HkqbZ;ka), Tahsil office, Bilaspur. They have not filed certified copy of revenue records of the suit land to prove their aforesaid statement. 11. A judgment of civil Court can be passed only on the basis of lawful admissible evidence and not on the basis of inadmissible evidence. If contains of documents is required to be proved, then as per Section 61 of the Indian Evidence Act, 1872 (henceforth ‘Act, 1872) it may be proved either by primary or secondary evidence. Section 63 which is an inclusive definition of secondary evidence provides under sub-section (1) thereof that, “certified copies given under the provisions hereinafter contained” constitute secondary evidence. Cases falling under Section 65 form exception to the mandate under Section 64 that documents must be proved by primary evidence. Section 65 provides that secondary evidence relating to documents may be given of the existence, condition or contents of a document in the various cases given thereunder. Section 65, in so far as, it is relevant for the purpose of this case reads thus:- “65. Cases in which secondary evidence relating to documents may be given.–– Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: –– (a) xx xx xx (b) xx xx xx 8 (c) xx xx xx (d) xx xx xx (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.” 12. Section 74 of the Act, 1972 deals with documents which are public documents. Section 76 contemplates that how certified copy of public document is prepared, which reads thus :- “76. Certified copies of public documents. - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. 9 Explanation.- Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section." 13. Sections 77 & 78 of the Act, 1872 provides proof of documents by production of certified copies and proof of other official documents, respectively whereas Section 79 of the Act, 1872 provides provision of presumption as to genuineness of certified copies. For ready reference, aforesaid provisions are as under :- 77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or part of the public documents of which they purport to be copies. 78. Proof of other official documents – the following public documents may be provides as follows : 1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government, -- by the records of the departments, certified by the head of those departments respectively, or by any document purporting to be printed by order of any such Government or, as the case may be, of the Crown Representative; (2) The proceedings of the Legislatures, -- by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned; 10 (3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government, -- by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer; (4) The Acts of the Executive or the proceedings of the Legislature of a foreign country, -- by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act; (5) The proceedings of a municipal body in a State, -- by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body; (6) Public documents of any other class in a foreign country, -- by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. 79. Presumption as to genuineness of certified copies. The Court shall presume to be given every document purporting to be a 11 certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government : Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper. 14. The cumulative effect of the aforementioned provision are that, contents of document must be proved by primary evidence, but if documents pertains to be public document, then it can be proved by filing certified copy prepared in the manner envisaged under Section 76 of the Act, 1872. As such, a certified copy of duplicate of an original document that has been officially endorsed as a true copy. According to Section 76 and 77 of the Act, 1872, such copies are admissible in court without the necessity of presenting the original document, provided they meet the required standards of authenticity. 15. Section 78 of the Act, 1872 establishes a presumption that a certified copy of a document is genuine. This means that in the absence of 12 evidence to the contrary, the court accepts the certified copy as an authentic representation of the original documents. 16. In the instant case, both the parties have filed only true copy of the revenue records of disputed property either prepared by In-charge (HkqbZ;ka), Tahsil office, Bilaspur (C.G.) or prepared by Revenue Inspector. Those documents further contain endorsement that “it is not acceptable for registration of land”. Thus, since those documents filed by the parties to prove their contention that suit property owned by their father or by them are not a certified copy prepared under Section 76 of the Act, 1872, as such, it cannot be presumed as to genuine certified copies of its original documents. Thus, the finding recorded by the trial Court relying on those in-admissible documents i.e. Ex. P-1 Ex.D-5 & Ex.D-10 that suit property was owned by late Sadan Lal Parche or plaintiff and defendants is found to be perverse and illegal. 17. Perusal of evidence available on record and impugned judgment passed by the trial Court shows that learned trial Court relying on deposition of Yadunandan Parche (DW-1) & Shyam Manohar Parche (DW-3) that mutual partition was effected by Sadan Lal Parche between his children and wife and in that partition, share (300 sq.ft) of portion of ancestral house received to their father – Sadan Lal Parche situated at Karbala, Juna, Bilaspur (C.G.) i.e. Khasra No. 270/1/77, Sheet No. -11, Plot No. 7, total area 1200 sq.ft. ] and shop namely “Jai Maa Sharda Spare Parts”, now renamed as “Maa Sharda Automobiles” situated at Seepat Road, near Vasant Vihar Gate, Bilaspur was fallen in the share of plaintiff – Hanuman Prasad Parche, but defendants have not filed any document to prove their contention that aforesaid property was owned by 13 their father – Sadan Lal Parche. In absence of such evidence, how aforesaid property can be given to plaintiff – Hanuman Prasad Parche in his share. As such, finding recorded by learned trial Court that mutual partition was effected by Sadan Lal Parche between his three sons, one daughter and wife is also perverse & illegal. 18. In view of the foregoing discussion, it is evident that trial Court has passed impugned judgment relying on those inadmissible documentary evidence, which has no legal value in the eye of law, whereas as per contention of both the parties, suit property is their family property, but they have not filed any valid admissible evidence i.e. certified copy of the revenue records to prove their contentions, for which it seems justified to give them an opportunity. 19. It is also apt to be noted here that during pendency of civil suit original defendant No. 1 – Smt. Kanti Bai Parche and original defendant No. 3 – Anita Parche, mother & sister, respectively of the parties died and defendant namely Yadunandan Parche (DW-1) and his witness Pyarelal Rathore (DW-2) have stated that Smt. Kanti Bai Parche and Anita Parche have executed will (Ex.D-12) and (Ex.D-13) in favour of defendant Yadunandan Parche, but no pleading has been made by defendants in their written statements in this regard, which ought to have been made in their written statement, else, these facts will create complications in future to decide share of the parties. 20. In view of above discussion, I feel inclined to remit the matter back to learned trial Court, so that just decision can be arrived at by passing decision afresh by passing fresh decision in accordance with law. 14 21. Consequently, impugned judgment & decree dated 15.01.2020 passed by 7th Upper District Judge, Bilaspur (C.G.) passed in Civil Suit No. 148-A/2015 is set aside. The matter is remitted back to the trial Court with a direction to afford opportunity to the parties to amend their pleadings in respect of alleged Will deed, frame additional issues, if required and also to adduce / file oral & documentary evidence to prove their contentions and pass judgment afresh in accordance with law. 22. Accordingly, the first appeal is allowed and the matter is remitted back with aforesaid direction. 23. A decree be drawn-up accordingly. 24. Pending interlocutory application (s), if any, also stands disposed of. 25. Learned counsel for both the parties are directed to keep present their respective parties on 15th April, 2025 before 7th Upper District Judge, Bilaspur (C.G.) 26. Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.03.12 16:49:09 +0530