(SA No.180/2014) CGHC010011292014 2026:CGHC:42602 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 180 of 2014 {Arising out of judgment and decree dated 29-1-2014 in Civil Appeal No.71-A/2011 of the Additional District Judge, Mungeli} Judgment reserved on: 16-9-2026 Judgment delivered on: 30-9-2026 Judgment (Full) uploaded on: 30-9-2026 1. Jagwat Satnami, S/o Khanjar Ram, Age 33 years, (Now 50), 2. Rajendra Kumar, S/o Jagwat (wrongly mentioned as Bhagwat), Age 10 years, Through Guardian & Father Jagwat, S/o Khanjar Ram 3. Laxmikumari, D/o Jagwat, Age 20 years, All R/o Gram Pithampur, Tah. Lormi, P.S. Chilpi, Civil & Revenue Distt. Mungeli (C.G.) (Defendants) ... Appellants versus 1. Durgendra Das Patre (Died and Deleted) 2. Chitla Das Patre, S/o Bhagwat Patre, Age 37 years, Caste Satnami, R/o Ketlatola Kashtakari, Gram Pithampur, Tah. Lormi, P.S. Chilpi, Distt. Mungeli (C.G.), Currently residing at Samtal Colour Lingia, Gram Chaprola, Buland City Road, Goutam Buddh Nagar, P.S. Kotwali, Civil & Revenue District Ghaziabad (U.P.) (Plaintiffs) 3. Umed Das, S/o Bhagwat Patre, Age 55 years, R/o Gram Phulwari, Tah. Lormi, Civil & Revenue Distt. Mungeli (C.G.) (Since Dead) 4. Sukhru, S/o Khanjar Satnami, Age 35 years, SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2026.09.30 17:29:12 +0530 (SA No.180/2014) 5. Faguram, S/o Khankar Satnami, Age 25 years, Res No.4 & 5 R/o Gram Pithampur, Tah. Lormi, P.S. Chilpi, Civil & Revenue Distt. Mungeli (C.G.) 6. Shatrupa Bai, Aged 22 years, W/o Pramod Satnami, R/o Uslapur, Tah. Mungeli, Civil & Revenue Distt. Mungeli (C.G.) (Since Dead) 7. State of Chhattisgarh, Through Collector, Civil & Revenue District Mungeli (C.G.) (Defendants) ... Respondents For Appellants : Mr. Ali Asgar and Mr. A.A. Laxmidhar, Advocates. For Respondent No.2 : Mr. Praveen Kumar Sharma, Advocate. For Respondent No.7 : Mrs. Shubha Shrivastava, Panel Lawyer. Single Bench: - Hon'ble Smt. Sushma Sawant, J. C.A.V. Judgment 1. Invoking the appellate jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1908, the appellants herein/defendants have preferred this appeal challenging the judgment & decree dated 29-1-2014 passed by the First Appellate Court Additional District Judge, Mungeli in Civil Appeal No.71-A/2011, arising out of judgment & decree dated 29-3-2005 passed by the Civil Judge Class-I, Mungeli in Civil Suit No.37A/2004, by which the learned Civil Judge Class-I has dismissed the suit for declaration and possession finding no merit. Factual Matrix -:Case of the Plaintiffs/Respondents No.1 & 2 herein before the Trial Court:- (For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the civil suit before the Trial Court.) (SA No.180/2014) 2. The original plaintiffs Durgendra Das Patre (died) and Chitla Das Patre have filed suit for declaration and permanent injunction against the defendants/appellants on the grounds that a land bearing Khasra Nos.77, 78/1 & 79/7, total area admeasuring 4.54 acres situate at Village Mouza Pithampur, Patwari Halka No.2, Tahsil Lormi, District Bilaspur, was earlier recorded in the revenue records in the joint names of the plaintiffs and the defendants. The said land was purchased by Bhagwat Das – father of the plaintiffs, and defendant No.1 through a registered sale deed dated 29-5-1961 from Mansingh. Thereafter, the plaintiffs and the defendants have got their names entered in the revenue records and the said ownership and possession was going on. Respondent No.1/Defendant No.1 Umed Das (died) has sold 1.54 acres of Khasra No.77, 1.10 acres of Khasra No.78 & 79/7, 0.55 acres of Khasra Nos.78/1 & 79/7 to defendants No.2 to 5 through registered sale deed, despite having executed an agreement on 16-5-1997 relinquishing his rights in respect of the suit property. 3. Thereafter, plaintiffs Durgendra Das Patre (died) and Chitla Das Patre approached the Revenue Court in respect of the suit property. The application was allowed; however, in appeal, the said order was set aside on the ground that the question of title was within the jurisdiction of the Civil Court. In these circumstances, plaintiffs Durgendra Das Patre (died) and Chitla Das Patre instituted suit for declaration stating that they have equal rights and share in 4.54 acres of land and that defendants No.2 to 5 – purchasers do not acquire any title through the sale deed. Page 4 of 16 (SA No.180/2014) -: Written Statement of the Defendants/Appellants before the Trial Court :- 4. As per the Trial Court record, it appears that, the defendants declined to accept the summons. Consequently, they were served by way of substituted service through publication in a local newspaper. Despite such service, the defendants did not appear before the Trial Court and were accordingly proceeded ex parte. As a result, no written statement was filed on their behalf. -: Proceedings before the Trial Court :- 5. The Trial Court after appreciating oral and documentary evidence available on record, framed following issue and answered the issue as under:- S.No. Question for Consideration Finding 1. क्या okn&Hkwfe ij oknhx.k dk LoRo ,oa vf/kdkj gS vkSj प्रतिवादी x.k dk dksbZ LoRo izkIr ugha gksrk gS ? ^^नहीa^^ -: Evidence adduced before the Trial Court:- Evidence led by the Pl aintiffs:- 6. Before the learned Trial Court, the plaintiff examined himself as Dugendra Das Patre (PW-1) in support of his case. In support of his oral testimony, he produced and exhibited eleven documents, which were marked as Exhibits P-1 to P-11. No other witness was examined by the plaintiffs. Page 5 of 16 (SA No.180/2014) Evidence led by the Defendants :- 7. The defendants declined to accept the summons issued to them. Consequently, summons were served upon them by way of publication in a local newspaper. Despite such substituted service, the defendants failed to appear before the learned Trial Court and were accordingly, proceeded ex parte. Consequently, no written statement was filed on their behalf. Even thereafter, the defendants did not participate in the proceedings and adduce any evidence in support of their case. Neither any oral evidence nor any documentary evidence was adduced on behalf of the defendants. Judgment of the Trial Court:- 8. Parties were given opportunity to adduce evidence and after completion of trial, the learned Trial Court vide judgment & decree dated 29-3- 2005 dismissed the suit on the ground that the plaintiffs had failed to prove their case by leading cogent and reliable evidence. -: Finding of the First Appellate Court/Impugned Judgment :- 9. Being aggrieved by the judgment & decree dated 29-3-2005 passed by the Trial Court in Civil Suit No.37A/2004 (Durgendra Das Patre and another v. Umend Das and five others) dismissing the suit, the plaintiffs have filed appeal (Civil Appeal No.71A/2011 – Durgendra Das Patre and another v. Umend Das and others) before the First Appellate Court. 10. The learned First Appellate Court, upon consideration of the evidence and material available on record, came to the conclusion that the (SA No.180/2014) document marked as Exhibit P-6, relating to the land bearing Khasra Nos.78 & 79/7, admeasuring 2.40 acres, whereby the rights therein were relinquished, had remained unchallenged. Accordingly, while partly allowing the appeal, the learned First Appellate Court set aside the judgment and decree passed by the learned Trial Court and directed the defendants to hand over possession of the land bearing Khasra Nos.78 & 79/7, admeasuring 2.40 acres, to the plaintiffs. -: Substantial Questions of Law :- 11. This second appeal preferred by the defendants/appellants herein was admitted on the following substantial questions of law: 1. “Whether the judgment and decree passed by the first appellate Court to the extent creating the right in favour of the suit property only on the basis of Exhibit P-6 is perverse or not? 2. Whether the first appellate Court could have proceeded ex-party against the respondent No.2 who was minor in spite of the fact that the Court had appointed a guardian?” Note: It may be noted that appellant No.2 has been inadvertently mentioned as respondent No.2 in question No.2 due to a typographical error. -: Analysis and findings of the Second Appellate Court :- 12. Having heard learned counsel for the parties and upon perusal of the record, this Court proceeds to examine the substantial questions of law involved in the present appeal. Page 7 of 16 (SA No.180/2014) -: Submissions of the Appellants herein :- 13. Vide written arguments, Mr. Ali Asgar, learned counsel for the appellants herein/defendants, has reiterated the grounds urged in the memorandum of appeal and submitted that the findings recorded by the learned first appellate Court are contrary to the evidence available on record. It is further submitted that the impugned judgment and decree, to the extent challenged in the present appeal, are unsustainable and deserve to be set aside. 14. With regard to the first substantial question of law, Mr. Ali Asgar, learned counsel for the appellants herein/defendants, submits that the first appellate Court has substantially erred in law by treating the agreement dated 16-5-1997 (Exhibit P-6) as an instrument conferring or relinquishing immovable property rights over 2.40 acres of land in Khasra Nos.78 & 79/7. The Khasra Panchsala records from 1983-84 to 1987-88 clearly reflected the suit land in the individual name of vendor Umed Das and revenue entries recorded pursuant to law carry a statutory presumption of truth. He further submits that the plaintiffs have failed to discharge their primary burden under Section 101 of the Evidence Act to prove by cogent title documents that the vendor lacked an alienable interest in the specific parcels sold. As held by the trial Court, the plaintiffs produced no partition deed or reliable documentary evidence demonstrating that Umed Das has sold the land exceeding his legal entitlement. Page 8 of 16 (SA No.180/2014) 15. Mr. Ali Asgar, learned counsel for the appellants herein/defendants, also submits that while the first appellate Court has directed the delivery of possession within 60 days, this Court, in its order dated 12- 11-2014 while admitting the second appeal and formulating substantial questions of law, has duly observed that the appellants have admittedly been in peaceful possession of the suit property for more than two decades. Thus, dispossessing longstanding registered purchasers on the basis of an unregistered instrument Exhibit P-6 is unsustainable and bad in law. 16. As regards substantial question of law No.2, Mr. Ali Asgar, learned counsel for the appellants herein, contends that defendant No.4 Rajendra Kumar – appellant No.2 herein, was admittedly, a minor aged about 10 years throughout the proceedings before the trial Court and the law requires strict protection of a minor’s proprietary rights. Once a minor is arrayed as a party, the Court is under a statutory obligation to ensure that the minor is effectively represented at every stage through a formally appointed guardian ad litem or natural guardian whose interest is not adverse. 17. He further contends that the first appellate Court has committed a jurisdictional error by proceeding ex parte and passing an adverse decree divesting the minor of proprietary rights without ensuring continuous, effective representation through the appointed guardian or appointing a court officer upon default. It is well settled that an ex parte decree passed against a minor whose defence was left unrepresented (SA No.180/2014) and uncared for in violation of Order XXXII of the Code of Civil Procedure, 1908, is voidable, defective and cannot be sustained against the minor. 18. He also contends that no Court guardian (guardian ad litem) was formally appointed to safeguard the minor’s interest and no counsel had effectively represented the minor before the first appellate Court after 2009. Therefore, an adverse decree passed against a minor without complying with the strict mandate of Order XXXII Rule 3 of the Code of Civil Procedure, 1908, is a nullity and is not sustainable in law. Finally, it is submitted that the plaintiffs’ suit was founded on an indivisible claim of joint family co-ownership. The failure of the plaintiffs before the first appellate Court to substitute the legal representatives resulted in statutory abatement of the appeal in its entirety. Therefore, a decree passed against a deceased party without substitution is void. -: Submissions of the Respondents herein/Plaintiff :- 19. Mr. Praveen Kumar Sharma, learned counsel for respondent No.2 herein/plaintiff No.2, opposes the instant second appeal as also the submissions made on behalf of the appellants herein and supports the impugned judgment. -:Analysis:- -:Consideration of Substantial Question of Law No.1:- “Whether the judgment and decree passed by the first appellate Court to the extent creating the right in favour of the suit property only on the basis of Exhibit P-6 is perverse or not? Page 10 of 16 (SA No.180/2014) 20. Having considered the submissions advanced by learned counsel for the parties and having perused the record, this Court finds that the principal question requiring consideration is the legal effect of Exhibit P-6, upon which the learned First Appellate Court has placed reliance while directing delivery of possession of the suit land to the plaintiffs. Document Exhibit P-6 is admittedly relied upon as a document whereby the executant defendant Umend Das (died) is stated to have relinquished his right in the land bearing Khasra Nos.78 & 79/7 admeasuring 2.40 acres. 21. Thus, notwithstanding the nomenclature “bdjkjukek okLrs gd NksM+us ckcr~” given to the document, its substance and intended legal effect are that of a relinquishment of an existing right in immovable property. The document is not merely a receipt or an acknowledgment of possession. It is relied upon for the purpose of establishing that the right of the executant in the suit property stood relinquished in favour of plaintiffs Dugendra Das and Chitla Das. 22. It is pertinent to mention here that the document in question is merely executed on a non-judicial stamp paper of ₹ 10/- and is neither a registered document nor duly stamped in accordance with law. In this regard, the provisions of Section 17 of the Registration Act, 1908 are directly attracted. Section 17(1)(b) mandates registration of every non- testamentary instrument which purports or operates to create, declare, assign, limit or extinguish, whether in the present or in the future, any right, title or interest, whether vested or contingent, in immovable (SA No.180/2014) property. Therefore, where the document in question purports to relinquish or extinguish any right, title or interest in immovable property, such document falls within the ambit of Section 17(1)(b) of the Registration Act and requires compulsory registration. Mere execution of the document on a ₹ 10/- non-judicial stamp paper cannot dispense with the statutory requirement of registration. 23. In this regard, the judgment of the Supreme Court in the matter of Yellapu Uma Maheswari and another v. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, is also important in which the Supreme Court has held that the nomenclature of a document is not decisive; its nature and substance have to be determined from its terms and recitals. Where the document, in substance, effects relinquishment of a right in immovable property, it is compulsorily registrable under Section 17(1)(b) of the Registration Act, and an unregistered document cannot be received in evidence for proving the transaction affecting such property, in view of Section 49 of the Registration Act. 24. The Supreme Court in Yellapu Uma Maheswari (supra) while considering documents containing relinquishment of rights in immovable property, has held that where a document has the effect of creating or taking away rights in respect of immovable property, it falls within Section 17(1)(b) of the Registration Act, 1908 and is compulsorily registrable. The Supreme Court further held that an unregistered (SA No.180/2014) document cannot be received in evidence for proving the primary transaction which itself affects rights in immovable property. 25. Section 17(1)(b) of the Registration Act, 1908 mandates registration of a non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, in immovable property. Section 49 of the said Act, in turn, places a statutory restriction upon the effect and admissibility of a document which is required to be registered but has not been registered. Therefore, where the very purpose of Exhibit P-6 is to extinguish the existing right of the executant in the suit land, registration was not a matter of form but a mandatory statutory requirement. 26. There is yet another independent impediment in placing reliance upon Exhibit P-6. The document is not shown to have been duly stamped in accordance with the applicable provisions of the Indian Stamp Act, as in force in the State of Madhya Pradesh. (At the time when the document was executed, Chhattisgarh and Madhya Pradesh constitute a single common State). Section 35 of the Indian Stamp Act places a statutory embargo upon admission in evidence of an instrument chargeable with duty but not duly stamped, subject to the procedure prescribed by law for payment of the requisite duty and penalty. Thus, the question of proper stamping is distinct from and additional to the requirement of registration. Page 13 of 16 (SA No.180/2014) 27. In the present case, Exhibit P-6 is admittedly neither a registered instrument nor a duly stamped instrument. It has nevertheless been relied upon by the learned first appellate Court as the very foundation for holding that the executant had relinquished his right in the suit land. Such an approach, in the opinion of this Court, overlooks the mandatory requirements of the Registration Act as well as the statutory embargo under the Stamp Act. 28. Consequently, Exhibit P-6, being an instrument which purports to extinguish an existing right in immovable property, was compulsorily registrable under Section 17(1)(b) of the Registration Act. In the absence of registration, it could not, by itself, operate to extinguish the right, title or interest of the executant in the suit property. 29. The learned first appellate Court, therefore, committed an error of law in treating Exhibit P-6, merely on proof of its execution, as sufficient to establish a legally effective relinquishment of the executant's proprietary right in the suit land and in proceeding thereafter to direct delivery of possession to the plaintiffs. The finding founded upon Exhibit P-6 cannot be sustained in law. 30. Accordingly, the finding of the learned first appellate Court insofar as it treats Exhibit P-6 as a legally effective instrument of relinquishment and bases the decree for possession upon the same, is set aside. - :Conclusion:- 31. In view of the foregoing discussion, this Court is of the considered opinion that Exhibit P-6, being an unregistered instrument which (SA No.180/2014) purports to relinquish and thereby extinguish an existing right in immovable property, could not have been treated by the learned first appellate Court as a legally effective instrument of relinquishment. The finding recorded by the learned first appellate Court on the basis of Exhibit P-6 is, therefore, unsustainable. Consequently, substantial question of law No.1 is answered in favour of the appellants herein/defendants and against the respondents herein/ plaintiffs. -:Consideration of Substantial Question of Law No.2:- “Whether the first appellate Court could have proceeded ex-party against the respondent No.2 (wrongly mentioned, it should be appellant No.2) who was minor in spite of the fact that the Court had appointed a guardian?” 32. So far as appellant No.2 herein/defendant (Rajendra Kumar) is concerned, it is evident from the record that, both before the learned Trial Court as well as before the learned Appellate Court, his age has been specifically mentioned as ten years in the cause title of the respective pleadings. Thus, appellant No.2/defendant (Rajendra Kumar) was admittedly a minor at the relevant time. 33. It is true that the mother (Indra Bai) of appellant No.2/defendant (Rajendra Kumar) has been mentioned in the cause title as his guardian. However, the record does not indicate that she was actually appointed as Next Friend of the minor in accordance with the procedure contemplated under the provisions contained in Order XXXII Rule 2 of the Code of Civil Procedure. More importantly, the proceedings (SA No.180/2014) were commenced and proceeded with without the minor being duly represented through a legally appointed guardian or Next Friend. 34. The learned Trial Court dismissed the suit and, therefore, the aforesaid defect may not have resulted in any immediate prejudice to the rights of the minor, particularly as no decree was passed against his interest. However, the same infirmity assumes considerable legal significance at the appellate stage. Despite the minor’s age being expressly reflected in the cause title, the learned first appellate Court proceeded with the appeal and ultimately partly allowed the claim, without first ensuring that appellant No.2 herein/defendant (Rajendra Kumar) was duly represented by a legally appointed guardian or next friend. 35. Initially, the minor appellant No.2/defendant (Rajendra Kumar) was represented through his father; however, at the stage of final hearing of First Appeal, the mandatory requirement relating to his representation was not duly complied with. Despite the minor appellant No.2/ defendant (Rajendra Kumar) being a party to the proceedings, the learned first appellate Court proceeded with the hearing ex parte and thereafter passed decree against the minor. Thus, the mandatory safeguards governing the representation of a minor during the appellate proceedings were not complied with before the decree was passed against him. 36. In the present case, therefore, the learned first appellate Court, having noticed or having before it the material showing that appellant No.2/ defendant (Rajendra Kumar) was a minor, ought to have first ensured his proper legal representation in accordance with law and only (SA No.180/2014) thereafter proceeded to adjudicate the rights of the parties. The failure to do so assumes greater significance because the appellate judgment has resulted in a decree partly affecting the rights and interests of the minor. - :Conclusion:- 37. Thus, the defect in constitution and conduct of the proceedings, insofar as appellant No.2/defendant (Rajendra Kumar) is concerned, cannot be treated as a mere irregularity. The learned first appellate Court, while partly allowing the suit, committed a serious error of law in proceeding to adjudicate the matter without ensuring that the minor appellant No.2/defendant (Rajendra Kumar) was duly represented through a legally appointed guardian in accordance with the provisions of Order XXXII Rule 2 of the Code of Civil Procedure. - : Final Conclusion:- 38. In that view of the matter, both the substantial questions of law are answered in favour of the appellants herein/defendants. Consequently, judgment & decree dated 29-1-2014 passed by the Additional District Judge, Mungeli in Civil Appeal No.71-A/2011 are hereby set-aside and judgment & decree dated 29-3-2005 passed by the Civil Judge Class-I, Mungeli in Civil Suit No.37A/2004 are affirmed. 39. In the result, the second appeal stands allowed. 40.Decree be drawn-up accordingly. Sd/- (Sushma Sawant) JUDGE Soma