1 2025:CGHC:49474 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on :10.9.2025 Judgment Delivered on :26.9.2025 SA No. 54 of 2021 1 - Shankar S/o Shambhu Rajwar, Aged About 37 Years R/o Village Kanthi, Police Station Darima, At Present Tahsil Ambikapur District Surguja (Chhattisgarh) 2 - Boudhi (Died And Deleted) 3 - Savitri, D/o Late Shambhu Rajwar, Aged About 32 Years R/o Village Kanthi, Police Station Darima, At Present Tahsil Ambikapur District Surguja (Chhattisgarh) ...Appellants/Defendants versus 1 - Sarihano D/o Late Shambhu Rajwar, Aged About 62 Years Caste Rajwar, R/o Village Kanthi, Police Station Darima, At Present Tahsil Ambikapur District Surguja (Chhattisgarh) (Plaintiff) 2 - State Of Chhattisgarh Through The Collector, Surguja District Surguja Chhattisgarh .. Respondents For Appellants : Mr. VK Pandey, Advocate For Respondent No.1 : Ms. Hamida Siddiqui, Advocate For Respondent No.2/State: Ms. Mandvi Bharadwaj, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) CAV Judgment 1. This second appeal has been preferred by the appellants/defendants under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 06.02.2021 (Annexure-A/1) passed by Second Upper District Judge, Ambikapur Distt. Surguja (CG) in BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.09.26 16:34:27 +0530 2 Civil Appeal No.22-A/2019, setting aside the judgment and decree dated 16.01.2019 (Annxure-A/2) passed by First Additional Judge to the Court of First Civil Judge Class-II, Ambikapur, Distt. Surguja, in Civil Suit No.1-A/2017, whereby the suit filed by respondent No.1/plaintiff for declaration of title and possession, has been dismissed. Learned first appellate Court allowed the civil suit of the plaintiff declaring her 1/4th share on the suit property of Schedule B entitling her to get possession after getting partition of it. (For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court) 2. Facts of the case, in brief are that plaintiff filed civil suit for declaration of title and possession stating inter alia that, land mentioned in Schedule ‘A’ annexed with the plaint is self acquired property of her great grand father Bahoran Rajwar and the land mentioned in Schedule ‘B’ (hereinafter called as ‘the suit land’) is the part of the land mentioned in Scheduled ‘A’. The plaintiff is daughter of late Shambhu, who was grand son of late Bahoran Rajwar. Late Shambhu had two wives; the plaintiff is daughter of first wife of Shambhu namely Kuteli and defendants 1 & 3 are son and daughter of second wife of Shambu namely Boudhi. Therefore, being children and second wife of Late Shambhu, the plaintiff and defendants 1 to 3 are entitled to get equal share of the suit land. It is further averred that, apart from the above suit land, Late Shambhu Rajwar also had agricultural land in village Kanthi and after his death the land situated in Kanthi was transferred in the name of the plaintiff along with the defendants as co-sharers. The plaintiff is living in village Kanthi and earning her livelihood by farming on the land inherited from her father. It is further contended that defendant No.1 in collusion with the revenue officials, fraudulently got his and his mother's name mutated in the revenue record of the suit land by claiming himself to 3 be the only successor/son of late Shambhu. The plaintiff first came to know that her name has not been recorded in revenue record of the suit land in November 2014 and thereafter she submitted an application before the Naib Tehsildar, Lundra for getting her name recorded, but the Naib Tehsildar rejected her application on the ground that the application was submitted after 19 years of the mutation, whereas the earlier mutation was passed without the knowledge of the plaintiff and without informing her, which is illegal and void against the title of the plaintiff. The plaintiff also requested the defendants to record her name in the revenue record of the suit land and give partition of her share, but the defendants refused to get recorded her name and give partition. Hence, she filed civil suit for declaration of title and possession. 3. Defendants 1 to 3 filed their written statement denying the pleadings made in the plaint and contended that the plaintiff has no title and possession over the suit land mentioned in Schedule 'B'. The suit land has been continuously in the possession of defendants No. 1 and 2 since 1996. Late Shambhu Rajwar during his lifetime before the year 1996, had got the plaintiff married to Sukhram Rajwar of village Chatirma, hence the plaintiff is not the owner of the suit land mentioned in Schedule 'B'. It was further contended that the plaintiff has received sufficient land in village Kanthi, therefore, she is not entitled to get any share of suit land. The plaintiff was aware of the fact that names of defendants No. 1 and 2 have been recorded in the revenue records of the land mentioned in Schedule 'A' and 'B' in the year 1996 itself, however, she did not challenge the mutation order in any competent court. After 19 years of the said mutation, the plaintiff submitted an application before Naib Tehsildar Lundra, challenging the mutation and the 4 same was rejected on the ground of barred by limitation. Therefore, civil suit filed by the plaintiff is liable to be rejected. 4. Based on the pleadings of the parties, the learned trial Court framed as many as 04 issues, recorded evidence adduced by both the parties and after considering the same, dismissed the suit on the ground of limitation. However, the learned trial Court, while deciding issued No.2 held that the plaintiff is entitled for ¼th share of suit land mentioned in Schedule ‘B’ annexed with the plaint. Aggrieved by this, the plaintiff filed an appeal, which was allowed by the learned first appellate Court by holding that the plaintiff is entitled for ¼th share in the suit land mentioned in Schedule ‘B’ situates at village Lalmati. Aggrieved by this, the defendants have preferred instant appeal. 5. Learned counsel for the defendants/appellants submits that, the suit land is the ancestral property of Shambhu (father of the plaintiff and defendants No.1 & 3). Shambhu was having land in two villages i.e. in village Kanthi. and village Lalmatti. He further submits that in the year 1996, plaintiff Sarihano had received her share on the land situated at village Kanthi, which has been admitted by herself in para 11 of her deposition, therefore, she is not entitled to get any share over the suit land situated at village Lalmatti as it was fallen in the share of defendants, hence, granting ¼th share to the plaintiff on the suit land by the Courts below, is perverse and illegal. Learned counsel further submits that to substantiate aforesaid facts, defendants have filed application under Order 41 Rule 27 CPC along with revenue documents, which show that their land situated at village Kanthi has been divided between plaintiff and defendants. It is further submitted that plaintiff Sarihano herself has admitted in her cross-examination para 11 that for more than 20 years, defendant No.1 Shankar is in possession over the suit land and he is 5 also paying revenue on it by recording his name in the year 1996 within the knowledge of plaintiff. Thus, the plaintiff is not in possession over the suit land (schedule B) situated at village Lalmatti, therefore, the suit is barred by limitation as has been held by the learned trial Court also but without any cogent reason, the appellate Court has reversed the finding of the trial Court. Hence, it is prayed that the appeal may be allowed and impugned judgment may be set aside. 6. Per contra, learned counsel appearing for respondent No.1/plaintiff would submit that the trial Court has specifically held that the plaintiff is entitled to get ¼ share over the suit property mentioned in Schedule ‘B’, while considering issue No.2, which has also been upheld by the first appellate Court. The defendants have not challenged that finding of the trial Court, therefore, it attained finality. She further submits that though the land of late Shambhu are situated in two villages i.e. at village Kanth and Lalmatti, but it has not been proved by the defendants that family partition of the suit land was effected between the plaintiff and the defendants and in that partition, the plaintiff has been given her full share at village Kanthi. She further submits that in that family settlement only some portion of the land of Shambhu situated at village Kanthi was given to the plaintiff, other land of village Kanthi was given to the defendants, in which they are in possession. Some portion of the said land was sold also by the defendant. She further submits that in that family partition, the suit land situated at village Lalmatti was not partitioned between them and it was cultivated by the defendants alone. Therefore, she submits that ¼th share granted by both the Courts below to the plaintiff, does not suffer from any perversity or illegality. She further submits that since the suit land is undisputedly ancestral property of both the parties, therefore, merely on the basis of defendants having physical 6 possession, it cannot be held that the plaintiff has no possession, rather the plaintiff has constructive possession on it, as it is undivided family property. When the plaintiff came to know about the fact in the year 2014, that defendants have illegally recorded their name in the revenue record of the suit land without serving notice to her and seeking partition was declined by the defendants, therefore, instant civil suit was filed on 02.01.2017. Therefore, the first appellate Court has not committed any error in law in setting aside the finding of the trial Court that the suit is barred by limitation. Hence, this appeal may be dismissed. 7. I have heard learned counsel for the parties and perused the material available on record. 8. This appeal has been admitted for hearing on 06.02.2024 on the following substantial questions of law:- (1) Whether the lower appellate Court was justified in reversing the finding given by the trial Court that suit filed by the plaintiff is barred by limitation? (2) Whether the finding given by the appellate Court that the plaintiff is entitled to get ¼th share of the suit property of Schedule “B”, situated at village Lamati, is perverse and illegal? 9. It is not in dispute that the suit land is the ancestral property of Late Shambhu, plaintiff Sarihano is daughter of Shambhu, born from his first wife Kuteli and original defendant No.2 Boudhi was second wife of Late Shambhu, from whom defendant No.1 Shankar and defendant No.3 Savitri were born. It is also not in dispute that Shambhu had agricultural land in two 7 villages i.e. at village Kanthi and village Lalmati. Aforesaid facts have also been proved by the plaintiff and their witnesses. 10. Instant suit has been filed by the plaintiff seeking share of the suit land situated at village Lalmati. She has not sought any relief in respect of land situated at village Kanthi. 11. As per the deposition of plaintiff Sarihano, after the death of her father Shambhu, her name was recorded along with defendants in revenue record of her father’s land situated at village Kanthi. She has further deposed that land of village Kanthi has been divided between them thereafter she is in possession of her share. This fact has also been supported by her witnesses Hari Prasad (PW-2) and Lakshman Prasad Rajwade (PW-3), who are also residents of village Kanthi. 12. The defendants have also neither rebutted aforesaid facts in their written statement nor in the cross-examination or examination-in-chief of defendant Shankar (DW-1), rather Shanker has deposed that while recording name of the plaintiff in revenue record of their land situated at village Kanthi and granting share to her, she had accepted that she has received sufficient land, therefore, she will not claim her share on the land situated at village Lalmati. It is further case of the defendants that in the revenue record of the land situated at village Lalmati, name of the defendants were recorded in the year 1996, which was within the knowledge of the plaintiff, thereafter the defendants are in absolute possession and the plaintiff had already been granted share in the year 1996, therefore, she is not entitled to get share of land situated at village Lalmati. Aforesaid fact has also been supported by Rajuram (DW-2), Purushottam (DW-3) and Bechandas (DW-4). But the suit land of the instant case situated at village Lalmati is undivided ancestral property of the plaintiff and the defendants, the defendants have not proved 8 that it was partitioned earlier, therefore, only because of non-mentioning name of the plaintiff in revenue record of the suit land or declining to grant share to the plaintiff, do not entitle the defendants to get absolute title on it, as the suit land is their undivided joint family property. 13. Defendant No.1 Shankar (DW-1) and his witnesses have stated that the defendants alone are in possession of the suit land for more than 20 years, the suit land was recorded only in the name of the defendants in the year 1996, within the knowledge of the plaintiff, but instant suit has been filed by the plaintiff on 02.01.2017 i.e. after 20 years, hence, the suit is barred by limitation. This contention of learned counsel for the appellant is not sustainable as it has not been proved by the defendants that partition of the suit land situated at village Lalmati was ever effected between the plaintiff and the defendants. Thus, it is their undivided family property. 14. As per namantharan Panji of 1995-96 (Ex-P/6), after death of Shambhu, his land situated at village Kanthi was mutated in the name of the plaintiff Sarihano and defendants 1 to 3 i.e. in their joint name. But namantharan panji (Ex-P/4 & P/5) show that the suit land situated at village Lalmati was recorded only in the name of defendants 1 to 3. It has not been proved that aforesaid namantharan proceedings was made in the presence of the plaintiff or after serving notice to her, it also does not contain her signature as she has also claimed that notice was not served to her. Therefore, only because of mutation of the suit land was made in the name of defendants only, though they are alone in possession over it, does not debar the plaintiff from getting her share of the suit land situated at village Lalmati, because it is their undivided family property. 15. Hon’ble Apex Court in the matter of Vidya Devi @ Vidya Vati (Dead) By Lrs. vs. Prem Prakash & Ors., 1995 SCC (4) 496, has held that 9 “it is settled preposition of law that, where the property is joint, co-sharers are the representatives of each other. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise plea of adverse possession by one co-sharer against another.” 16. In the instant case, since the suit land was never partitioned between the plaintiff and the defendants and it is their ancestral property, therefore, merely because it is recorded in the name of the defendants only and they alone are in possession of it, does not debar the plaintiff to get her share on it. Since the plaintiff is co-sharer of undivided suit land, hence, the defendants/co-sharers’ possession would also amount constructive possession of the co-sharer/plaintiff. Hence, the learned first appellate Court has not erred in law in holding that the civil suit filed by the plaintiff is not barred by limitation by reversing the finding of the learned trial Court. 17. Since the plaintiff has not claimed any right on their land situated at village Kanthi, rather documents (Annexure-A/3) filed by the appellants/defendants along with application under Order 41 Rule 27 CPC also show the fact that land situated at Kanthi was divided among the plaintiff and defendants in the year 2013 and that land is not subject matter of the instant civil suit, therefore, documents filed by the appellants/defendants vide aforesaid application is not relevant to the facts of the instant case, hence application (IA No.05/2025) under Order 41 Rule 27 CPC filed by the appellants/defendants is rejected. 18. As has been discussed above, suit land situated at village Lalmati is undivided ancestral property of the plaintiff and the defendants and being daughter of Late Shambhu, the plaintiff is Class-I heir of her father Shambhu. Original defendant No.2 Boudhi was second wife of Shambhu, 10 from whom defendant No.1 Shankar and defendant No.3 Savitri were born, thus, there are 4 LRS of late Shambhu. Hence, it is found that the learned Courts below have not erred in law in holding that the plaintiff is entitled to get ¼th share of the suit land of late Shambhu situated at village Lalmati. 19. Accordingly the first question of law is answered in ‘affirmative’ and second question of law is answered in ‘negative’. Thus, both the questions of law are answered in favour of the plaintiff and against the defendants. 20. Consequently, the second appeal is dismissed affirming the judgment and decree passed by the first appellate court, leaving the parties to bear their own cost. 21. A decree be drawn accordingly. 22. Record of the trial Court as well as the first appellate Court be returned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Bini