Dismissed

Vinod Kumar v. Dameshwar and Ors.

Chhattisgarh HC7 Feb 2012SA/302/2009

Case brief

AI extract

What is this about?

In this second appeal concerning a suit for declaration of title and possession over land, the High Court dismissed the appeal. The court held that no substantial question of law was involved, prohibiting further appellate jurisdiction under Section 100 CPC, and rejected arguments regarding the absence of an affidavit. No relief was granted. Thin oral order.

What did the court decide?

The second appeal was dismissed with no order as to costs.

Vinod Kumar Vs Dameshwar and Ors. — Property and Title | Chhattisgarh HC (2012)

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IN THE HIGH COURT OF CHHATTISGARH

AT:BILASPUR

lawNN«j

S.A. No. ^ <—/2009

C. S. & Appeal were valued RS. 24000/-: C.F.was affixed RS. 3007Valued fhe Second Appeal at Rs.24000/C.F. is affixed Rs. 300.00.

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APPELLANT: ^ yinod Kumar, aged 70 years, son of Shri Jayrakhan, caste Khairwar, resident of village Khajanchitoli, Jashpumagar, tahsil and district l^ Jashpur (C.G.)

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'^—£>\

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(Plainnff/Avvellant)

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R.B. N3 ^rK^n^s ^v ^^^ ga'ied..........^-^'

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VERSUS

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RESPONDENTS:

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J,. Dameshwar, aged 45 years, caste Khairwar, son of Shri Kauleshwamath, Govemment service in the department ofTelephone Exchange, Raigarh, district Raigarh (C.G.)

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^ fV^ ^ 2^Tulsiram, aged 42 years, son of Shri Kauleshwamath,
'.f./^o ^
caste Khairwar,
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^y^/^f'^' 3. Smt. Rukmani, aged 70 years, caste Khairwar, wife of
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iifT/ Shri Kauleshwamath, Kauleshwamath,
^- Both No. 2 and 3 are residents of village village Goriya,
<T

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Smt. Rukmani, aged 70 years, caste Khairwar, wife of Shri Kauleshwamath, Kauleshwamath,

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Both No. 2 and 3 are residents of village village Goriya, tahsil Bagicha, and district Jashpur (C.G.)

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Bhimeshwamath, aged 63 years, son of ShriShivnath, caste Khairwar, resident of village Khajanchitoli, Jashpumagar, tahsil and district Jashpur (C.G.)

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€

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^5: Bhagirathi, aged 34 years, son of Shri Vijeshwamath, caste Khairwar, Govemment service, Higher Secondary School (Scheduled Castes Welfare) Premnagar, district Sarguja (C.G.)

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Arvmd, aged 32 years, son of Vijeshwamath, caste

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^ Khairwar, Govemment service 'Clerk' in the office ofthe P. W. D. Raigarh, district Raigarh (C. G.)

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Bhuneshwar, aged³⁰ years,^{sonofVijeshwamafc,caste}

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/' Khairwar,

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Ranjan, aged 20 years, son of Vijeshwamath, easte Khairwar,

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Smt. Sulochna, aged 55 years, wife of Vijeshwamath, caste Khairwar,

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^•^

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No. 7 to 9 are residents ofvillage Khajanchitoli, Jashpumagar, tahsil and district Jashpur (C.G.)

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lO.State of Chhattisgarh, through^fhe District^Collector,

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" district Jashpur (C.G.)

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fDefendants/resmndents)

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SECOND APPEAL UNDER SECTION 1000F

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THE CODE OF CIVIL PROCEDUItE. 1808.

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STOond ADDeal^No. 302 of 2009

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APPELLANT : Vinod Kumar Platntiff

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Venaas

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RESPONDENTS : Oamesh^r&others Defendants

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(APPEAL UNDER SECTICT^ 100 GF ^3DE QF CtVIL PROOEDyRE. 1908^

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(StoateBench: Hon^bleMr.N.K.AaarwalsJA

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ssent : Shri Somnath Verma, Aclvocate forthe appeljant. Shri A.K. Prasad, Advocate for respondent No. 1 to 9. Shri San(eev Agrawat, PaneK-awyeFfor tteState.

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ORALOI^ER (Passedon^{07.0^2012)}

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Heard on admission.

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Instant Second Appeal flled uncter Sectiisi'v t0©of CPC1s ctwKAect against the judgment and decree dated 27.03.20©9,ps^sed by the District Judge, Jashpur, in Cwt Appeal No. 6-A/2(X38, affirming the judgment and ctecree dated 11.04.2008, passed b^ Civil Judge, Class II, Camp Court Jashpur, Sn Civlt Suit No. 2- A/08.

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Facts in brief are that : plairrtiWappelteant instKuted a sult for declarationofhjstitle.possesstonandtodeelaretheorclerclated 24.08.2005 passed by the Tehsildar in Revenue Case No. 4/A-70/20Q4-05 asnuU sntd vold inter alia en the ground plaintifrs^{mother Ramabaiexchangedher house anct land} bearing Khasra No. 297/1 wtth one Deenanath arri oblained from hlm-the suit land bearing Khasra No. 291 ,araa 0.04 A@re, biAthe

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same stands illegally recorded in the name of ctefeRctant No. 1 to

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The defendants deniedthe plaint avermenfc

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The trial court framed issues. Parties ted their evidences.

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The trial court dismissed the suit finding inter alia ptaintifflalled to prove^{hisor hismother'sownershipoverthesuitlandl.e.House} and land and also failed to prove possession over the disputed land.

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The first appeltate court, re-appreGiattCTg the entire evidenGe acteluced in the case, affirmed tte findings reeordect by (he trial court and dismissed the appeal preferred by thf appetlant. Hence this Second Appeal.

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Shri Somnath Verma, leame^ couns^ appeartng fbr the appellants/plafntifjB vehemently argued the defenctaots h8ve not fited afffclavjt in terms of Order 6 Rule 15 (4) of CPC ^ong with written statement; the trial court has also not framed issue regarding appellant's adverse possession over disputed land which vitiates the judgment of trial court as wellas af the ftst appellate court, and therefore, the finctings recorded by both tfte courts below are perverse.

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I have heard thecounset appearing forthe appellant and perused the order impugned including reeords of both the courts belaw.

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Both the courts below on due appreciation and r^appreciation of tlle-entire evidence led documentary as well as oral, concurrentty held the plaintiff is neither the owner of the suit property nor is in its possession. The appeltant could not point out any iUegality

or perversity in the above faetuat flndmgs recorelect by botti the courts below. 1 also do not find any such perverstty in the above findings.

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Although, no afficlavithas beenfltedby theclefenclanteint@"msof Order 6 Rute 15 (4) of CPC, but, thlspleawas never raised foy the appellant either before the trial court or tefore the first appettate court and now it is not open tor the appellant to rafee thesameintheinstantSecondAppeal. to th»sameway, once^t is held the appetlant is not in possesstoro of suifr property, the question of his being in adverse possesslon of the suit proper^ does not arise and the above argument of Shri Verma is ateo of no help to him, therefore, no substantial question oflawarisesfor determination ofthis court.

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This court cannot proceed to hear a second appeal vrtthout there being any substanttai questton of iaw involved in th& appeal; Exjstence of substanttal questSon of law is the siite-qua*f!on1of the exercise of the jurisdicrtion under the su'nendec^Se^on'ftOO of the Code. Leamed counsel appearing for the aMieltent feiled to point out any substarrtial qyestfon of law wbieh may arise for determination in the case, In the absenee whereof tNs Court tias no option but to dismiss the appeal.

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In view of above the appeal fails anct fe aGCordJngly dismisseci. No

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orderastocosts.

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sahu J"d9e

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Sd/N. K. Agarwal

Vinod Kumar v. Dameshwar and Ors.

Case brief

What is this about?

What did the court decide?

Vinod Kumar v. Dameshwar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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