SUMER SINGH Vs. BHAV SINGH.

JUDGEMENT

(1.) The appellants have preferred this appeal under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 15-5-2004 passed by the District Judge, Rajnandgaon in Civil Suit No. 9-A/1999 wherein the said court dismissed the suit filed by the appellants for partition, declaration and permanent injunction regarding the land situated at village Birejhar, District Rajnandgaon mentioned in part 1 to 4 of Schedule-A of the plaint.

(2.) Appellants are the plaintiffs of the suit and respondents are the defendants. One Laxman Singh is father of the appellant No.1 Sumer Singh and respondent No.1 Bhav Singh. Six sons of the appellant Sumer Singh have been arrayed as appellants No. 2 to 6 and respondent No.4. Respondent No.1 Bhav Singh and his four sons have been arrayed as respondents no. 2, 3, 8 and 9. Later-on some legal representatives were brought on record due to death of respondent No.4 Som Dutt. There was Hindu Undivided Family headed by father Laxman Singh comprising with his two sons Bhav Singh and Sumer Singh. Laxman Singh had agricultural lands at village Amatki, Masabhat, Nikum and Matewa in District Durg and in village Birejhar in District Rajnandgaon. Agricultural holding at village Birejhar (city property) being ancestral in nature was later-on recorded in mutation proceeding into four separate agricultural holdings. Land recorded in document (Ex.P/11 and P/13) is mutated in the name of Bhav Singh and land recorded in document (Ex.P/10 and P/12) is recorded in the name of Sumer Singh. These documents contained the land approximately 65 acres. It is alleged by the respondents that mutation in revenue record was merely an agreement and not partition as family did not dissolve and remained in continuation. In the meantime, lands recorded in the above four documents were sold to satisfy needs of family members. The recorded owner did not affect the transfer proportionately that is why other co-parcener suffered and property to be managed equally and property be re-accounted. They placed reliance on the decision of Hon'ble the Supreme Court in the matter of Mohammad vs. Nemichand and another, reported in AIR 1986 MP 155 , State of Karnataka vs. Register General, High Court of Karnataka, reportedm in (2000) 7 SCC 333 and Omprakash vs. State of HP, reported in AIR 2001 HP 19.

(3.) On the other hand, learned counsel for the respondents supporting the judgment and decree passed by the trial Court would submit that Laxman Singh had affected the partition and after partition each account holder had full right to alienate the property, therefore, transfer of the property is legal and once a partition is always a partition, therefore, no relief can be granted to the appellants for re-accounting the land in dispute. He would further submit that the finding of the trial Court is based on factual and legal aspect of the matter and same is not liable to be interfered with while invoking jurisdiction of the appeal.