JUDGMENT : 1. This second appeal has been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 31.03.2011 passed by Additional District Judge (F.T.C.), Bemetara, District- Durg (C.G.) in Civil Appeal No. 9A/2011 (Tirath Ram & others Vs. Smt. Ratna Bai & others) setting aside the judgment and decree dated 12.10.2009 passed by Civil Judge Class-II, Saja, District- Durg (C.G.) in Civil Suit No. 40A/2009 for declaration of title, separate possession and grant of permanent injunction of the suit property mentioned in Schedule- A, B, C & D of the plaint. 2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 40A/2009 which was filed for declaration of title, separate possession and grant of permanent injunction 3. The instant Second Appeal has been admitted for hearing by this Court vide its order dated 06.07.2011 staying the effect and operation of the impugned decree framing following substantial questions of law:- “Whether the finding recorded by the first appellate court that there was no previous partition between Tirath Ram, Pawan and Devendra is perverse?” 4. The brief facts, as reflected from the plaint averments, are that the plaintiff has filed civil suit on 21.07.2008 for declaration of title, partition, separate possession and grant of permanent injunction mainly contending that plaintiffs No. 4 to 7 are daughters of plaintiffs No. 1 & 2 and after marriage, they are residing in their matrimonial house. Plaintiff No. 3 is son of plaintiffs No. 1 & 2. Defendants No. 1 & 2 are widow and daughter of plaintiffs No. 1 & 2 son namely Devendra Kumar Chandrakar. The parties are Hindus and governed by Banaras Branch of Hindu. It has been further contended that plaintiff No. 1 is a resident of Village- Rampura, Tahsil- Saja and in pursuance of partition taken between their father and brothers, he has received 40 acres of land in the year 1974-75. The description of the properties has been given in the Schedules annexed with the plaint. Plaintiff No. 1 generating income from ancestral property, has purchased 20 acres of land in the name of both sons namely Pawan Kumar and Devendra Kumar. He was residing with joint family and as per his legal requirement, he has sold 16 acres of land and presently he is in possession of 44 acres of land. 5. Plaintiff No. 1 generating income from ancestral property, has purchased 20 acres of land in the name of both sons namely Pawan Kumar and Devendra Kumar. He was residing with joint family and as per his legal requirement, he has sold 16 acres of land and presently he is in possession of 44 acres of land. 5. It has been further contended that the suit property has been described in Schedule-A of the plaint, which is 17.59 Hectare (Total 38 Nos. of Khasra). Plaintiff No. 1 after marriage of his sons has partitioned the property in equal division. Accordingly, 5.61 Hectare has been recorded in his name and in the name of his son- Pawan Kumar, he has recorded 6.22 acres. Similarly, in the name of his younger son- Devendra Kumar, he has recorded 5.76 acres. The property has been described in Schedule- B, C & D of the plaint. It has been further contended that though there was separate land accounts, still the property has not been partitioned between him and his sons even before death of his younger son. In fact, it is joint Hindu family property. It has been further contended that after amendment in the Hindu Succession Act, the daughters i.e. plaintiffs No. 4 to 7 are also entitled to get equal share of property, therefore, they are entitled to get the share of property being co-parcener in the joint Hindu family property along with defendants No. 1 & 2. It has been further contended that defendants No. 1 & 2 have also recorded their names in the revenue record by order of Tahsildar, Khamariya in the year 2007-08 even after their objection which was rejected by the Tahsildar vide its order dated 27.06.2008. It has been further contended that in the property mentioned in Schedule-A of the plaint, the plaintiffs and defendants have 1/8th share. It has been further contended that after death of Devendra Kumar, 1/8th share, defendants No. 1 & 2 and plaintiff No. 2 mother- Bisen Bai have 1/3rd share of 1/8th part, as such, plaintiff No. 2 1/8th share + 1/24th share and defendant No. 1 has 1/24th share and defendant No. 2 has also 1/24th share of the property mentioned in Schedule-A of the plaint measuring about 17.59 Hectare. As such, Devendra Kumar is entitled to get 2.20 Hectare out of which, plaintiff No. 2 has 0.73 and defendant No. 2 is entitled to get 0.73 Hectare, as such, out of 17.59 Hectare, defendants No. 1 & 2 are entitled to get 1.46 Hectare of the joint Hindu property and rest of the property mentioned in Schedule-A which comes to 16.13 Hectare, belonged to plaintiffs only. 6. On the above factual foundation, the plaintiffs have prayed for declaration that the property described in Schedule-A of the plaint be declared as joint property of plaintiffs and defendants No. 1 & 2. It be also declared that defendants No. 1 & 2 are entitled to get 1/24th share of the property. It has also been prayed that it be kindly declared that separate possession to the plaintiffs for suit property measuring 16.13 acres be jointly granted and defendants No. 1 & 2 be granted separate possession and partition of 1.46 Hectare. The order of Naib Tahsildar dated 27.06.2008 be kindly declared illegal. 7. Defendants No. 1 & 2 have filed their written statement denying the allegations made in the plaint contending that the plaintiff has sold 16 acres of land for legal requirement of the joint family property. According to the plaintiff himself, his minor sons namely Pawan Kumar & Late Devendra Kumar are owner of 20 acres of land, therefore, without permission of the District Court, the property of minor cannot be sold. It has been further contended that the property mentioned in Schedule-A of the plaint has already been divided in three land accounts as stated by him and they are living separately and they are in possession of the land, therefore, it is actual partition. It has been further contended that the agricultural work and their meals are separated. Even before death of Devendra Kumar after partition, he was residing with his family and after death, they were living separately in separate house, which proves that the partition has already been taken place between the parties and would pray that the suit filed by the plaintiff may kindly be dismissed. It has been further contended that the plaintiffs are making attempt to grab the property of deceased's son and his daughter. The plaintiffs have no right to claim in the property mentioned in Schedule-A of the plaint as it is not a joint property. It has been further contended that the plaintiffs are making attempt to grab the property of deceased's son and his daughter. The plaintiffs have no right to claim in the property mentioned in Schedule-A of the plaint as it is not a joint property. The property belongs to defendant No. 1 as his own property and after his death, belongs to defendants No. 1 & 2 and would pray for dismissal of the suit. 8. Learned trial Court on pleading of the parties, has framed as many as six issues. Issue No. 1 & 2 are relevant for adjudication of this appeal, as such, the same are extracted below:- “1. Whether the property mentioned in Schedule-A is joint property of plaintiff and defendants No. 1 & 2? 2. Whether the actual partition between defendants No. 1 & 2 and the plaintiffs have already been taken place?” 9. The plaintiff to substantiate his case has examined Tirath Ram (PW-1), Toplal (PW-2), Shobhit (PW-3) and exhibited document namely order dated 27.06.2008 passed by Naib Tahsildar (Ex. P/1), Kishtabandi Khatauni (Ex.P/2). 10. The defendants to substantiate their case examined Ratna Bai (DW-1), Mordhwaj (DW-2) but no document has been produced in support of their contention. 11. Learned trial Court vide its judgment and decree dated 12.10.2009 has dismissed the suit filed by the plaintiff. Learned trial Court while appreciating the evidence and material placed on record has recorded a finding that the plaintiff No. 1 has already partitioned the suit property between himself and the sons and prior to amendment in the Hindu Succession Act, as such, it cannot be reopened. It was actual partition of the property, therefore, it cannot be re-partitioned or reopened, which cannot be said that the property is co-parcenary property, as such, the plaintiffs have no right over the suit property. The suit is liable to be dismissed and accordingly, dismissed the suit. 12. Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiffs have preferred first appeal before the learned First Appellate Court i.e. Additional District Judge (F.T.C.), Bemetara. The appellants have reiterated the pleadings made in the plaint and have contended that the finding recorded by the learned First Appellate Court is contrary to the record, perverse, as such, the same deserves to be set aside. 13. The appellants have reiterated the pleadings made in the plaint and have contended that the finding recorded by the learned First Appellate Court is contrary to the record, perverse, as such, the same deserves to be set aside. 13. Learned trial Court after appreciating the evidence and material placed on record has recorded its finding that no document prior to order dated 27.06.2008 passed by Tahsildar has been filed to establish that the partition has been taken place, therefore, it is a joint Hindu property. Learned First Appellate Court taking into consideration, the evidence placed on record that the witnesses examined by the defendants have nowhere have stated in their evidence that the partition took place, the partition is not in writing. Learned First Appellate Court has also considered the evidence of defendant No. 1- Ratna Bai, who in cross-examination has stated that Village Sarpach-Dharmendra and other senior citizens of the village were present at the time of partition, but they have not been examined, therefore, it cannot be said that the partition has been taken place and has held that the suit property is joint Hindu property and accordingly, directed for partition. Learned First Appellate Court has directed that the plaintiffs and defendants No. 1 & 2 are entitled to get 1/24th part of the property in partition. Learned First Appellate Court has also declared the order dated 27.06.2008 by the Tahsildar to be null and void. Being aggrieved with the judgment and decree passed by the First Appellate Court, the defendants have preferred second appeal and the same has been admitted by this Court by framing substantial question of law as stated hereinabove. 14. Learned First Appellate Court has also declared the order dated 27.06.2008 by the Tahsildar to be null and void. Being aggrieved with the judgment and decree passed by the First Appellate Court, the defendants have preferred second appeal and the same has been admitted by this Court by framing substantial question of law as stated hereinabove. 14. Learned counsel for the appellants/defendants would submit that the learned First Appellate Court has failed to consider the issue with regard to the partition of the suit property between plaintiff No. 1, plaintiff No. 3 and deceased Devendra shown in Schedule-A of the plaint, since the plaintiff No. 1 has specifically taken plea in the plaint in paragraph 6 that he had divided the suit property into three equal shares and further he has admitted at paragraph 12 of his cross-examination that after mutation plaintiff No. 1 himself, plaintiff No. 3 and deceased Devendra have separate land accounts with respect to the suit property and at the time of separating their land accounts no one raised any objection in this regard, even his wife plaintiff No. 2 has also not raised any objection in this regard and further at paragraph 17 of his cross-examination he admitted that after the death of his son Devendra dispute arose between the plaintiffs and appellants/ defendants and further the brother of plaintiff No. 1 namely Toplal has admitted at paragraph 9 of his cross-examination that plaintiff No. 1, plaintiff No. 3 and deceased Devendra have separated their land account with regard to the suit property and at the time of partition he was called. 15. He would further submit that learned First Appellate Court has reversed the judgment and decree of the trial Court only on the ground that both the parties have failed to explain that in which date and what time the partition took place whereas the plaintiff No. 1 himself has admitted in paragraph 6 of the plaint as well as in his cross-examination that they all are living independently, separately, they are in possession of their respective shares and have separate land account. Their names were also recorded in the revenue records. Their names were also recorded in the revenue records. Learned First Appellate Court has failed to consider that plaintiff No. 1 himself admitted for family arrangement he partitioned the suit property, therefore, once the partition is admitted, the said partition cannot be reopened unless it shows that the same is obtained by fraud, therefore, no independent witness is required to be proved. 16. He would further submit that the learned First Appellate Court has committed illegality and irregularity and the finding recorded by the First Appellate Court suffers from perversity, illegality, which warrants interference and the same is liable to be set aside and the substantial question of law framed by this Court be answered in favour of the appellants/defendants. 17. On the other hand, learned Senior Advocate for respondents No. 1 to 7 would submit that the finding recorded by the learned First Appellate Court is legal, justified and does not warrant any interference by this Court. He has also submitted written submission wherein it has been stated that the claim of the defendants are that there was oral partition between the parties, therefore, the suit for partition again is not maintainable. He would further submit that the date and time of partition was not known to the witness as per paragraph 11 of the statement, therefore, it cannot be said that the partition can be taken into consideration for the purpose of non-suiting the respondents No. 1 to 7, therefore, the finding recorded in paragraph 11 &12 regarding oral partition is doubtful and in absence of date, no benefit under Section 6 of the Hindu Succession Act can be given. He would further submit that in absence of specific proof of partition for partition cut of date has been prescribed in the Hindu Succession (Amendment) Act, which has to be considered. Therefore, the partition which has rightly been discarded by the lower appellate court cannot be said to be illegal or perverse, therefore, question of law be decided against the appellants and the appeal be dismissed with costs throughout. 18. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 19. From pleadings of the parties, evidence and material placed on record, it is clear that the plaintiff himself has pleaded in the plaint that the partition has been taken place and land accounts have been separated. 18. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 19. From pleadings of the parties, evidence and material placed on record, it is clear that the plaintiff himself has pleaded in the plaint that the partition has been taken place and land accounts have been separated. Tirath Ram (PW-1) in his examination-in-chief at paragraph 4 has stated that he has separated the land accounts of property in three separate land accounts in which names of his two sons and himself have been recorded separately. The witness was cross-examined and in paragraph 12 of cross-examination has stated that he has not taken any loan from bank and his son Pawan Kumar has also not taken any loan. He has admitted that during lifetime there was no objection and even his daughters and Pawan Kumar have also not raised any objection. He has admitted that after death of Devendra Kumar dispute has begun. The witness Topsingh (PW2) was examined by way of affidavit and in the cross-examination, he has admitted that there was no dispute with regard to partition during lifetime of Devendra. He has stated that at the time of partition of land accounts, he was called. Shobhit Chandrakar (PW-3) was examined by way affidavit and in cross-examination, he has admitted that land accounts have been separated. He has stated that Devendra, Tirath Ram & Pawan have separated kitchen. 20. Ratna Bai (DW-1) was examined by way of affidavit before the trial Court wherein she has reiterated the stand taken in the written statement. This witness was cross-examined wherein she has stated that partition was taken place. She has stated that after death of her husband, the dispute arose. Mordhwaj (DW-2) has examined by way of affidavit and supported the case of the defendants. In paragraph 13, he has stated that oral partition was taken place and the land accounts were separated 7-8 years prior. 21. From the evidence placed on record, it is crystal clear that the plaintiff has nowhere proved that even after partition, they are living jointly and doing agricultural work or they are eating jointly. In paragraph 13, he has stated that oral partition was taken place and the land accounts were separated 7-8 years prior. 21. From the evidence placed on record, it is crystal clear that the plaintiff has nowhere proved that even after partition, they are living jointly and doing agricultural work or they are eating jointly. It is not in dispute that oral partition is also permissible under the Hindu Law and in the present case in hand, the plaintiff himself has stated that the land accounts have been separated, therefore, it is for him to prove that even after separation, they are living jointly and it is a spurious partition and no actual partition has been taken place between the family members. 22. The defendant No. 1 in her evidence has categorically stated that Devendra Kumar before death was living separately and after death also, they are living separately. This factum was not rebutted even extensively cross-examined by the plaintiffs, therefore, on examination of the entire facts of the case, it is quite vivid that partition has already been taken place and they are living separately. 23. It is well settled that the burden is on the person who alleges existence of Hindu Undivided Family to prove the same. Proof is required not only with respect to jointness of family but also with respect to fact that property concerned belongs to joint Hindu Family, unless there is material on record to show that the property is the nucleus of joint Hindu Family or that it was purchased through funds coming out of this nucleus. It cannot be said that it is joint Hindu family property. Hon'ble the Supreme Court in Bhagwat Sharan (Dead Through Legal Representatives) Vs. Purushottam & others, (2020) 6 SCC 387 , has held at paragraph 13, 21 & 28 as under:- “13. Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property (1955) 1 SCR 1 , (2003) 10 SCC 310 , (1960) 2 SCR 253 , (2007) 1 SCC 521 has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. Some property (1955) 1 SCR 1 , (2003) 10 SCC 310 , (1960) 2 SCR 253 , (2007) 1 SCC 521 has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together. 21. An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It is in this light that we have to examine the admission made by Hari Ram and his brothers while filing the written statement to the suit filed by Seth Budhmal. In paragraph 6 the averment was that the defendants constituted trading Joint Hindu Family. It is obvious that the admission was with regard to a trading family and not HUF. In view of the law cited above, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. In our opinion, this has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family. As far as paragraph 8 is concerned in our view there is no clear-cut admission. The allegation made was that the minors were represented by defendant nos. 1-3, who were head of their respective branches. In reply to this it was stated that defendant nos.1-3 were neither the head or the karta, nor the mortgage transaction was made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family. 28. 1-3, who were head of their respective branches. In reply to this it was stated that defendant nos.1-3 were neither the head or the karta, nor the mortgage transaction was made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family. 28. As far as the agricultural lands are concerned the trial court decreed the suit in respect of the agricultural lands on the basis that Madhav Prashad and his brother Umrao Lal and their successors constituted an HUF. The said lands having been bought out of the funds of the HUF would be treated to be the property of the HUF, even though they may have been entered in the name of any other person. In view of the above discussion, and the fact that we have held that the plaintiff has failed to prove that there is an HUF, we are not inclined to agree with the finding of the trial court.” 24. Hon'ble the Supreme Court in Adiveppa & others Vs. Bhimappa & another, (2017) 9 SCC 586 , has held at paragraph 19 to 23 as under:- “19. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See- Mulla, Hindu Law, 22nd Edition Article 23 "Presumption as to co-parcenary and self acquired property"- pages 346 and 347). 20. In our considered opinion, the legal presumption of the suit properties comprising in Schedule ‘B’ and ‘C’ to be also the part and parcel of the ancestral one (Schedule ‘D’) could easily be drawn for want of any evidence of such properties being self-acquired properties of the plaintiffs. It was also for the reason that the plaintiffs themselves had based their case by admitting the existence of joint family nucleolus in respect of schedule ‘D’ properties and had sought partition by demanding 4/9th share. 21. It was also for the reason that the plaintiffs themselves had based their case by admitting the existence of joint family nucleolus in respect of schedule ‘D’ properties and had sought partition by demanding 4/9th share. 21. In our considered opinion, it was, therefore, obligatory upon the plaintiffs to have proved that despite existence of jointness in the family, properties described in Schedule ‘B’ and ‘C’ was not part of ancestral properties but were their self acquired properties. As held above, the plaintiffs failed to prove this material fact for want of any evidence. 22. We have, therefore, no hesitation in upholding the concurrent findings of the two Courts, which in our opinion, are based on proper appreciation of oral evidence. 23. Learned counsel for the appellants took us through the evidence. We are afraid we can appreciate the evidence at this state in the light of what we have held above. It is not permissible.” 25. From the above stated legal position, considering the entire evidence and material on record, it is crystal clear that the plaintiff has failed to prove that the partition was not actual partition despite separating the land accounts. Even if for any reason, the land accounts have been separated which is a partition as the partition is a redistribution or adjustment of preexisting rights, among co-owners/ coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. Hon’ble the Supreme Court in Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna & others, (2009) 9 SCC 689 , has held at paragraphs No. 5 & 6 as under:- “5. “Partition” is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. 6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. 6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.” 26. Thus, it was incumbent upon the plaintiffs to prove that they are living jointly to treat the family as joint Hindu family, but no such evidence has been placed on record. Learned First Appellate Court has committed illegality in shifting the burden upon defendants with regard to the partition as the defendants have not specified the dates of partition and the persons who have alleged to have been present at the time of partition, were not called for recording their evidence and unwanted adverse inference has been drawn against the defendants, whereas, the plaintiff himself stated that the land accounts have been separated then it was incumbent to prove that they are living jointly. Even as per admission by the plaintiffs in the plaint itself that accounts have been separated it is admitted fact as per Section 58 of the Indian Evidence Act, 1872, therefore, learned First Appellate Court has committed illegality in shifting burden on defendants No. 1 & 2 to prove about partition. Hon'ble the Supreme Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran & others, (2017) 3 SCC 702 has examined this provision and has held at paragraph 28 as under:- “28. Hon'ble the Supreme Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran & others, (2017) 3 SCC 702 has examined this provision and has held at paragraph 28 as under:- “28. In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced. When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.” 27. The plaintiffs have miserably failed to prove the jointness of Hindu family property. Therefore, the finding recorded by learned First Appellate Court suffers from perversity and illegality which warrants interference by this Court. 28. Further submission of learned Senior Advocate for the plaintiffs that the daughters are entitled to get share as per the judgment rendered by Hon’ble the Supreme Court in Vineeta Sharma Vs. Rakesh Sharma, (2020) 9 SCC 1 . There is no quarrel with regard to legal proposition that daughters are entitled to get share in joint Hindu property being co-parcener. But, in the present case, the daughters have not approached the trial Court independently, but on their behalf, the litigation is being initiated even they have not appeared before the trial Court to adduce evidence and in the evidence of Tirath Ram (PW-1), it has been clearly brought on record that no one has raised objection when Devendra Kumar was alive. As such, daughters are entitled to get share of the property from her father being co-parceners in the property owned by the father as per the provisions of Hindu Succession (Amendment) Act, 2005 and the law laid down by Hon’ble the Supreme Court in Vineeta Sharma (Supra). 29. Accordingly, the instant Second Appeal is allowed and the judgment and decree dated 31.03.2011 passed by Additional District Judge (F.T.C.), Bemetara, District- Durg (C.G.) in Civil Appeal No. 9A/2011 is set aside and the judgment and decree dated 12.10.2009 passed by Civil Judge Class-II, Saja, District-Durg (C.G.) in Civil Suit No. 40A/2009 is restored for different reasons mentioned hereinabove. 30. Accordingly, the instant Second Appeal is allowed and the judgment and decree dated 31.03.2011 passed by Additional District Judge (F.T.C.), Bemetara, District- Durg (C.G.) in Civil Appeal No. 9A/2011 is set aside and the judgment and decree dated 12.10.2009 passed by Civil Judge Class-II, Saja, District-Durg (C.G.) in Civil Suit No. 40A/2009 is restored for different reasons mentioned hereinabove. 30. A decree be drawn up accordingly.