In this second appeal, defendants challenged the first appellate Court's decree granting possession over suit land. The Court held that possession was validly claimed via plaint amendment and that the defendants did not dispute the land's identity at lower courts. The appeal was dismissed.
Impugned judgment and decree of the first appellate Court dismissed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 100 of 2005
Judgment reserved on 27/11/2019
Judgment delivered on 02/12/2019
1. Smt. Saritano W/o Late Ogar say (died and deleted).
2. Mansay S/o Late Ogar Say (died) through Lrs.
(a) Duhana Ram S/o Late Mansay, Aged about 40
years, R/o Village Bankipur, P.S. and Tahsil
Ambikapur, District Surguja, Chhattisgarh.
3. Balbhadra S/o Late Ogar Say, Aged 20 years.
All R/o Village Bankipur, P.S. Jainagar, Tahsil Ambikapur, District Surguja, Chhattisgarh.4. Smt. Sundari Bai W/o Karansay, Aged 40 years, R/o Labji, Post Bhittikala, Tahsil Ambikapur, District Surguja, Chhattisgarh.
5. Mundri Bai W/o Basaram, R/o Village Vishnupur, Tahsil Ambikapur, Distt. Surguja, Chhattisgarh.
6. Basanta Bai W/o Karima, R/o Village Podi, P.S. Jainagar, District Surguja, Chhattisgarh.
7. Prabhudayal S/o Bigna Ram, Aged 35 years, R/o Village Bankipur, P.S. Jainagar, District Surguja, Chhattisgarh.
8. Chola Ram S/o Ram (died) through Lrs.
(a) Kendi W/o Late Chola Ram, Aged 65 years,
Caste Kanwar, R/o Village Bankipur, P.S.
Ambikapur, Tahsil Ambikapur, District Surguja,
Chhattisgarh.
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(b) Prem Prasad S/o Late Chola Ram, Aged 45
years, Occupation Agriculture, R/o Village
Bankipur, P.S. & Tahsil Ambikapur, District
Surguja, Chhattisgarh.
--- Appellants/Defendants
Versus1. Smt. Amari Devi W/o Late Dukalu Ram (died and deleted).
2. Bal Govind S/o Dukalu Ram, Aged 48 years.
3. Kendan Ram S/o Late Dukalu Ram, Aged 40 years.
4.Indra Kunwar D/o Late Dukalu Ram, Aged 50 years.
All R/o Village Bankipur, P.S. & Tahsil
Ambikapur, District Surguja, Chhattisgarh.
--- Plaintiffs
5. The State of M.P. (Now C.G.) through Collector, Ambikapur, Surguja, Chhattisgarh.
--- Respondents
For Appellants : Mr. A.K. Prasad, Advocate
For Respondents No. 2 to 4: Mr. Lalit Jangde,Advocate
For State/Respondent No. 5: Mr. Akash Pandey, Panel
Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
1. This second appeal preferred by the defendants was admitted for hearing on the following substantial questions of law :-
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“1. Whether the learned Court below
committed an error of law by granting
relief of possession which was not
prayed for ?
2. Whether the plaintiff has proved the
encroachment made by the defendant as
the question of identity of the plot
itself was not properly established ?”
(For the sake of convenience, parties would be
referred hereinafter as per their status and
ranking shown in the suit before the trial
Court.)
2.Late Shri Dukaluram was granted patta/bhoomiswami
right over the suit property bearing Khasra No.
78/1 area 4.08 acres situated at Village Bakipur,
Tahsil Ambikapur pursuant to revenue case No.
66A-1982/83 on the basis of his possession. Later
on, defendants started interfering with his
possession pursuant to which proceedings under
Section 250 of the CPC was initiated against them
and thereafter, dispute arose between the parties
with regard to the possession over the suit land
and it necessitated the plaintiffs to file a
civil suit originally for declaration of title
and permanent injunction, but thereafter, by
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order dated 22/12/1995 an amendment was sought in
the plaint further claiming relief for possession
as well.
3. Defendants filed their written statement and claimed that they are in possession of the suit land and plaintiffs are neither title-holders nor the possession-holders of the suit land, as such, their suit deserves to be dismissed.
4. Learned trial Court, upon appreciating the oral and documentary evidence on record, held that plaintiffs are title-holders of the suit land as the original plaintiff – Late Shri Dukaluram was granted patta/bhoomiswami right over the suit land, but further recorded a finding that defendants are not interfering with the possession of the plaintiffs and consequently, by its judgment and decree dated 03/02/2000 dismissed the suit of the plaintiffs.
5.On first appeal being preferred by the
plaintiffs, learned first appellate Court allowed
the appeal by its judgment and decree dated
20/01/2005 and decreed the suit of the plaintiffs
holding that they are entitled to decree of
possession over the suit land from the
defendants.
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6.Being aggrieved by the said judgment and decree
passed by the first appellate Court, this second
appeal under Section 100 of the CPC has been
preferred by the defendants in which two
substantial questions of law have been framed and
set out in the opening paragraph of this
judgment.
7.Mr. A.K. Prasad, learned counsel appearing for
the appellants/defendants would submit that the
first appellate Court is absolutely unjustified
in granting the relief of possession to the
plaintiffs which was not prayed by them initially
and moreover, the encroachment made by the
defendants has also not been established, yet the
decree for possession has been granted in their
favour, therefore, the judgment and decree of the
first appellate Court deserves to be set aside.
8.Mr. Lalit Jangde, learned counsel for the
respondents/plaintiffs would support the impugned
judgment and decree passed by the first appellate
Court and would submit that the second appeal
deserves to be dismissed.
9. I have heard learned counsel for the parties, considered their rival submissions made herein-
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above and went through the records with utmost
circumspection.
Answer to 1st substantial question of law :-
10.It is true that original plaintiff – Late Shri
Dukaluram initially brought the suit only for
declaration of title and permanent injunction,
but later on, vide order dated 22/12/1995, relief
for possession was also claimed by way of
amendment in the plaint. Therefore, the first
question of law is answered in negative as
plaintiffs had already claimed the relief of
possession, though by incorporating amendment in
the plaint by order dated 22/12/1995.
Answer to 2nd substantial question of law :-
11.It is the case of the plaintiffs that suit land
was alloted to their predecessor in title Late
Shri Dukaluram and they have succeeded the
property from him, but during the pendency of the
suit, defendants have dispossessed them from the
suit land as the trial Court rejected plaintiffs'
application for temporary injunction on
14/12/1990, and therefore, by way of amendment in
the plaint on 22/12/1995, relief for possession
was also sought by them.
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12. A careful perusal of the written statement would show that dispute as to the identity of the suit land which runs into 4.08 acres was never expressly raised before the trial Court and consequently, no issue was struck by the trial Court in this regard.
13. Learned counsel for the appellants/defendants has taken me through some observations made by the trial Court in paragraphs 9 to 12. It is not the case of the defendants before the trial Court that they are owners of the suit land bearing Khasra No. 78/1 and they are not disputing the title of the plaintiffs over the suit land, as such, the dispute with regard to identity of the suit land was never raised by the defendants before the trial Court or before the first appellate Court except proclaiming that the lease granted in their favour is illegal, which the two Courts below have not found favour with, thus, the said substantial question of law does not arise for consideration.
14. The second appeal deserves to be and is accordingly dismissed. No cost(s).
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15.Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal)
Judge
Harneet
2 issues framed by the court
Whether the learned Court below committed an error of law by granting relief of possession which was not prayed for?
Whether the plaintiff has proved the encroachment made by the defendant as the question of identity of the plot itself was not properly established?
1 provisions across 1 enactments
Mansay S/o Late Ogar Say
Balbhadra S/o Late Ogar Say
Smt. Sundari Bai W/o Karansay
Mundri Bai W/o Basaram
Basanta Bai W/o Karima
Prabhudayal S/o Bigna Ram
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court