Dismissed

Dashoda v. Semkuwar (Died) (Deleted)

Chhattisgarh HC8 Jan 2020SA/500/2007

Case brief

AI extract

What is this about?

The Second Appellate Court dismissed the appeal in limine without notice, holding that the plaintiffs' suit for declaration of title was barred under Section 34 of the Specific Relief Act due to omission to challenge the revenue officer's order affirming the nullity of the sale deed.

What did the court decide?

Second Appeal No. 500 of 2007 dismissed in limine without notice to the other side.

Dashoda Vs Semkuwar (Died) (Deleted) — Property and Title | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Second Appeal No. 500 of 2007

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1. Dashoda, Aged about 30 years, D/o Baishakhu Gond, R/o Daujra, Tahsil Pendra Road, District Bilaspur, Chhattisgarh.

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2. Shriram, S/o Avadhram Gond, Aged 22 years, R/o Village Newsa, Tahsil Pendra Road, District Bilaspur, Chhattisgarh.

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---Appellants/Plaintiffs

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Versus

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1. Semkuwar W/o Bechan Singh (died and deleted).

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2. Sahay Singh S/o Bechan Singh (died and deleted).

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3. Vigyan Singh, Aged 30 years, S/o Bechan Singh.

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4. Sandeep Singh, Aged 25 years, S/o Bechan Singh.

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5. Bharat Singh, Aged 18 years, S/o Bechan Singh. All are by caste Kanwar, R/o Village Newsa Kachharpara, Police Station Gaurela, Tahsil Pendra Road, District Bilaspur, Chhattisgarh.

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6. Sarodhan Singh, Aged about 53 years, S/o Bikul Singh, Agriculturist, R/o Village Newsa, Tahsil Pendra Road, District Bilaspur, Chhattisgarh.

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7. Mayaram, Aged about 50 years, S/o Baishakhu Gond, R/o Darmohli, Tahsil Marwahi, District Bilaspur, Chhattisgarh.

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8. Shobhnath, Aged about 38 years, S/o Baishakhu Gond, R/o Daujra, Tahsil Pendra Road, District Bilaspur, Chhattisgarh.

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9. Udaybhan Singh, Aged 19 years, S/o Kumar Singh, R/o Nagwahi Ghordewatola, Tahsil Pendra Road, District Bilaspur, Chhattisgarh.

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10.State of Chhattisgarh, through Collector,
Bilaspur, Chhattisgarh.

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---Respondents/Defendants

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`For Appellants`	`:-`	`Mr. S.D. Rajas, Advocate`
`For Respondents No. 1 to`	`6:-`	`Mr. Rakesh Pandey,` `Advocate`
`For Respondent No. 7`	`:-`	`Mr. Vinod Ku. Sharma,` `Advocate`
`For State`	`:-`	`Ms. Anjali Singh` `Chouhan, Advocate`

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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

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08/01/2020

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1.Heard on admission and formulation of
substantial question of law in this second
appeal preferred by the appellants/plaintiffs
under Section 100 of the CPC assailing the
impugned judgment and decree by which the
first appellate Court reversed the judgment
and decree of the trial Court and dismissed
the suit of the plaintiffs.

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2.Mr. S.D. Rajas, learned counsel for the
appellants/plaintiffs would submit that first
appellate Court has clearly erred in
dismissing the suit of the plaintiffs on the
ground that the sale deeds (Ex. P/3 to P/6) in

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favour of Baishakhu i.e. plaintiffs'
predecessor in title have already been
declared null and void by the S.D.O in

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170 (b) proceedings of the Chhattisgarh Land
Revenue Code initiated by the defendants which
was ultimately set aside by the Additional

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Collector vide Ex. P/1. He would further
submit that the first appellate Court has
allowed the documents Ex. D/13 and D/14
without giving an opportunity to the
plaintiffs to rebut them by adducing evidence
in rebuttal, as such, the appeal deserves to

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be admitted by formulating substantial
questions of law in these regard.

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3.It is the case of the plaintiffs that their
predecessor-in-title Baishakhu purchased the
suit property vide registered sale deed (Ex.
P/6) and thereby, came into possession of the

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said suit property. After a long time,
proceeding under Section 170 (b) of the
Chhattisgarh Land Revenue Code was initiated

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by the defendants wherein by order dated
22/07/1994, the S.D.O. declared the said
transaction (Ex. P/3 and P/6) as null and void
which was assailed by the plaintiffs in an
appeal before the Additional Collector, who
vide its order dated 22/01/1996 (Ex. P/1) set
aside the order passed by the S.D.O. and thus,

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the said order passed by the S.D.O. was not
challenged by the plaintiffs before the civil
Court while filing of the suit and only simple
declaration of title was sought by them which
was granted by the trial Court, but reversed
by the first appellate Court in the appeal
preferred by the defendants on the ground that
the sale deeds (Ex. P/3 and P/6) have been
declared null and void by the S.D.O. under
Section 170 (b) of the Land Revenue Code which
was set aside by the Additional Collector, but
the order of the S.D.O. has been upheld by the
Commissioner vide order dated 26/08/1997 in
revision preferred by the defendants and the
order passed by the Commissioner was not
challenged by the plaintiffs before the trial
Court, therefore, the order of the S.D.O.
declaring the transaction (Ex. P/3 and P/6) as
null and void has become final.

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4.It is correct to say that while filing the
suit, along with the relief of declaration of
title, plaintiffs also ought to have sought
for the consequential relief of setting aside
the order of the Commissioner affirming the
order of the S.D.O. by which the sale deeds

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(Ex. P/3 and P/6) particularly, Ex. P/6 by
which plaintiffs' predecessor in title namely
Baishakhu purchased the suit property from one

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Pratap Singh were declared null and void under
Section 170 (b) of the Land Revenue Code.

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5.In this regard, the decision of the Supreme
Court in the matter of Jugraj Singh and Anr.
v. Jaswant Singh and Ors.1 is pertinent.

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Paragraph 11 of the report states as under :-

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“In these circumstances, we are

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satisfied that there was proper
execution of the document and
registration. It is hardly necessary
in view of our decision, to say
anything more about this case. We are
also satisfied that the appellants
were not entitled to a declaration. We
have reproduced the paragraph in which
the reliefs were asked in the plaint.
It will be noticed that they neither
asked for the cancellation of the
order of the Collector nor for any
injunction, two of the reliefs which
they were entitled to ask in the case
in addition to the declaration. Such a
suit would be hit by Section 42 of the
Specific Relief Act and we would be
quite in a position to deny them the
declaration without these specific

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1 AIR 1971 SC 761

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reliefs. Indeed they had only to ask
for the setting aside of the order.”

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6.As such, in absence of seeking relief of

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setting aside the order of the Commissioner
dated 26/08/1997 affirming the order of the
S.D.O. dated 22/01/1996 declaring the impugned
transaction (Ex. P/3 and P/6) as void under
Section 170(b) of the Land Revenue Code,
plaintiffs' suit is barred by proviso to
Section 34 of the Specific Relief Act, 1963.

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7.The next contention of learned counsel for the
appellants/plaintiffs is that Ex. D/13 and
D/14 i.e. copy of khasra panchshala were taken

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on record and no opportunity was provided to
the plaintiffs to lead evidence in rebuttal
which the first appellate Court ought to have
granted. This point certainly has merit as no
additional evidence can be taken on record
without giving an opportunity to the other
side to rebut and lead evidence in rebuttal,
otherwise it will be in violation of
principles of natural justice, but since the
suit is apparently barred by proviso to
Section 34 of the Specific Relief Act for want
of challenge to the order of the S.D.O. as
affirmed by the Commissioner declaring the

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transaction (Ex. P/3 and P/6) to be null and
void, even admitting the appeal on this ground
and remitting it to the trial Court would not

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serve any purpose as apparently, plaintiffs'
suit is barred by proviso to Section 34 of the
Specific Relief Act for want of challenge to
the order of the Commissioner, setting aside
the order of the Additional Collector and duly
upholding the order of the S.D.O. passed under
Section 170 (b) of the Land Revenue Code. In
view of the aforesaid legal analysis, I do not
find any merit in this appeal giving rise to
any substantial question of law.

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8.The second appeal, being devoid of merits,
deserves to be and is accordingly dismissed in
limine without notice to the other side. No
order as to cost(s).

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Sd/(Sanjay K. Agrawal) Judge

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Harneet

Dashoda v. Semkuwar (Died) (Deleted)

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Dashoda v. Semkuwar (Died) (Deleted)

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