Dismissed

Gajanand v. Lakhan Lal and Ors.

Chhattisgarh HC5 Feb 2014SA/206/2002

Case brief

AI extract

What is this about?

A second appeal by a plaintiff challenging a decree declaring a sale of partitioned land void. The High Court held that the concurrent finding of fact by lower courts regarding the plaintiff's share was based on evidence and not perverse, dismissing the appeal at admission.

What did the court decide?

The second appeal under Section 100 of the CPC was dismissed at the admission stage with no order as to costs.

Gajanand Vs Lakhan Lal and Ors. — Civil Procedure and Limitation | Chhattisgarh HC (2014)

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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CG)

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'2^9'fc S.A.NO. /2002 APPELLANT GAJANAND S/0. SAM£LAL SAHU, AGED PLAINTIFF ABOOT 30 YEARS, R/0. VILLAGE ERAMSAHI OCCUPATION-AGRICULTURIST, TAH. BEMETARA, DISTT. DURG (CHHATTISGARH)

APPELLANT

./-"

VERSUS

RESPONDENTS 1) LAKHAN LAL S/0. SJWgSLRL DEFENDANTS SAHU, AGED ABOUT 40 YEARS. HARIPRASAD S/0. JHUMUK PRASAD, AGED ABOUT 30 YEARS. ^'" BOTH ARE R/0. VILLAGE ^"' ERAMS&HI, TAH. BEMETARA, •r''.'^'' ^•~ ;&' . <A A.-^ ^y,& DISTT. DURG (CHHATTISGARH) '"^^ ^y^ 3) STATE OF CHHATTISGARH, ^' THROOGH : COLLECTOR DURG. COURT FEES OF RUPEES 30/- IS FIXED KSVEKL IS WITHIN LIMITATION. ./• APPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE.

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HIGH COURT OF CHHATTISGARH .L

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Single Bench: Hon'ble Mr. Justice Sanjay K. Agrawal Second Appeal No.206 of 2002 APPELLANT Gajanand, S/o. Samelal Plaintiff Sahu Vs. RESPONDENTS Lakhan Lal & another Defendants

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SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 Present: Shri P.P. Sahu, counsel for the appellant Shri Akhil Agrawal, Panel Lawyer for the State/respondent No. 3. ORAL ORDER Passed on 06.02.2014 (1) Heard on admission. For sake of convenience, the parties would be ref.erred hereinafter as per their status before the trial Court. (2) This is plaintiff's Second Appeal filed under Section 100 of the Code of Civil Procedure (for short 't'he CPC') against the judgment and decree dated 25.1.2002 passed by IVth Additional District Judge, Durg Camp, Bemetara in Civil Appeal No. 7-A/2001, affirming the judgment and decree dated 30.06.1984 passed by Civil Judge, Class II, Bemetara in Civil Suit No. 192-A/84.

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(3) Facts necessary for disposal of this appeal are that: in a suit filed by platntiff-Gajanand claiming that the scheduled suit property bearing Khasra No. 161, area 0.54 decimal which, he got in partition and, thus, the sale made by defendants No. 1 & 2in favour of defendant No. 3 be declared null and void.

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(4) The trial Court, after close scrutiny of the evidence available on record, came to the conclusion that plaintiff has got only 27 decimal of the scheduled land on'partition and the remaining part of the suit land fell in share of defendants No. 1 & 2 and granted decree in favour of the plaintiff to the extent of 27 decimal of the scheduled suit land and declared the sale in favour of defendant No. 3 to that extent null and void.

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(5) Plaintiff's challengadthe judgment and decree, partly dismissing the suit, before the first appellate court. The first appellate . court, after reappreciating the entire evidence adduced in the case, a'ffirmed the judgment and decree passed by the trial court, leading to filing of this Second Appeal under Section 100 of the Code of Civil Procedure. (6) Mr. P.P. Sahu, learned counsel appearing for the appellant/plaintiff would submit that findings recorded by both the courts below that the plaintiff is entitled only for 27 decimal of the scheduled suit J-

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land is perverse, the suit ought to have been decreed » in toto and that raises a substantial question of law for determination in this appeal.

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(7) I have heard learned counsel appearing for the appellant and perused the records of both the courts below including judgment & decree impugned. (8) Both the courts below have concurrently recorded a finding that there was no partition deed in writing between the parties but the partition was oral and there is no evidence on record that the entire scheduled suit land bearing Khasra No. 161', area 0.54 decimal came in plaintiff's share. The trial Court as well as first appellate court decreed the suit of the plaintiff holding that he is entitled only for 27 decimal of the suit land which he got in partition. Thus, the said ,findings recorded by both the courts below are finding of fact based on material available on record and I do not find it either or perverse contrary to record and no question of law much less substantial question of law is involved in this appeal. (9) Recently, the Supreme Court in the case of Vishwa.lia.th Agrawal, S/0 Sita.xam Agrawal Vs. Sarla Vishwana.th AgrawaJ has held that High Court should not disturb the concurrent finding of fact, unless

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finding recorded are perverse being based on no evidence. Para-36, 37 of report*as under:"36. In Major Slngh Vs. Rattan Singh2 it has been observed that when the courts . below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. Manikrao it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recoreded by the Courts below are pervere beingi based on no evidence or that on the evidence on record no reasonable could have person come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decions of this Court in Abdul Raheem V. Karnaraka Electricity Board ." (10) Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the courts below is based on evidence, no substantial question of law is involved in this appeal, thus appeal deserves to and accordingly dismissed at admission stage itself. No order as to cost

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Sd/-

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Sanjay K. Agrawal Judge

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!j^

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(1997) 3 SCC 546: AIR 1997 SC 1906 (1999) 3 SCC 573 (2007) 14 SCC 138: AIR 2008 SC 956

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Gajanand v. Lakhan Lal and Ors.

Case brief

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Gajanand v. Lakhan Lal and Ors.

Case brief

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