Remanded

Janki Bai v. Smt. Budhobai

Chhattisgarh HC14 Jul 2022SA/291/2017

Case brief

AI extract

What is this about?

In this second appeal against a judgment dismissing the Defendant's appeal in a property dispute, the High Court noted a glaring inconsistency in the lower appellate court's judgment where findings favoured the Defendant but the appeal was dismissed citing the Plaintiff's contention. The High Court remitted the matter for a fresh decision on merits.

What did the court decide?

Impugned judgment and decree set-aside; matter remitted to the First Appellate Court for a fresh hearing on merits.

Janki Bai Vs Smt. Budhobai — Property and Title | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.291 of 2017

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Janki Bai, W/o Late Laxmiprasad Nai, aged about 80 Years, R/o Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund, Chhattisgarh.

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Kaushlya Bai, D/o Kishun, Aged About 40 Years W/o Late Laxmiprasad Nai, R/o Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund, Chhattisgarh.

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Devnarayan S/o Late Laxmiprasad, Aged About 27 Years R/o Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund, Chhattisgarh.

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Piha Bai D/o Late Laxmiprasad, Aged About 24 Years R/o Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund, Chhattisgarh.

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Papiha Bai D/o Late Laxmiprasad, Aged About 24 Years R/o Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund, Chhattisgarh.

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Purshottam S/o Late Laxmiprasad, Aged About 18 Years R/o Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund, Chhattisgarh.

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---- Appellants

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Versus

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Smt. Budhobai, W/o Late Faguwa Ram Dewangan, aged about 66 years, R/o Ward No.1, Ravanbhatha, Pithaura, Tah. Pithaura, Distt. Mahasamund, Chhattisgarh.

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State Of Chhattisgarh, Through Collector, Mahasamund, District Mahasamund, Chhattisgarh.

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---- Respondents

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___________________________________________________________________ For Appellants : Mr. Keshav Dewangan, Advocate. For Respondent No.1 : Mr. Amit Kumar, Advocate.
For Respondent No.2/State : Mr. Ashish Gupta, Panel Lawyer.

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Hon'ble Shri Justice Arvind Singh Chandel

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Judgment On Board

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14/07/2022

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The second appeal preferred by the Appellants herein/Plaintiffs against the impugned judgment and decree dated 06.01.2017

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passed by learned First Additional District Judge, Mahasamund (C.G.) in Civil Appeal No. H 63 A/2014, arising out of judgment and decree dated 18.08.2011 passed by learned Civil Judge Class-II, Pithaura, District Mahasamund (C.G.) in Civil Suit No.22A/2009, whereby in the Civil Appeal the lower Appellate Court has dismissed the appeal mentioning that the appeal preferred by the Plaintiffs has been dismissed, whereas, the appeal was preferred by Defendant No.1.

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Facts of the case are that the Appellants herein/Plaintiffs have filed a Civil Suit for possession of the suit premises on the ground that they were the registered owner of the disputed premises bearing Khasra No.206/4, Rakba 0.036, P.H. No.22, situated in Village Pithaura (C.G.). The husband of Plaintiffs No. 1 & 2 namely Laxmiprasad Nai purchased the suit premises from one Pachkod through registered sale deed and as per order dated 15.04.1999 passed by learned Tehsildar he got his name mutated in revenue records. It was pleaded by the Plaintiffs that in the year 1997, husband of Respondent No.1 herein/Defendant No.1 namely Faguwa Ram Dewangan obtained the said suit premises on rent from Laxmiprasad Nai. After the death of Laxmiprasad Nai, his wifes demanded rent amount from Faguwa Ram then instead of giving rent, Faguwa Ram filed a suit on the ground of adverse possession which was dismissed on 17.01.2002. Thereafter, the plaintiffs filed the suit for possession of the disputed premises. During pendency of the suit, Faguwa Ram has died. His wife was impleaded on record as his legal heir.

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Respondent herein/Defendant No.1 in her written statement denied all the averments made by the Plaintiffs in their plaint. She also claims that on the basis of adverse possession, she is the owner of the disputed premises. It was further pleaded by her that the entire transaction between Late Laxmiprasad Nai and Late Pachkod was illegal, therefore, no right was created in favour of Late Laxmiprasad Nai.

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After recording the evidence led by the parties, the trial Court

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after appreciating the evidence on record vide order dated 18.08.2011, decreed the suit in favour of the Plaintiffs. Aggrieved by the aforesaid judgment and decree, Defendant No.1 preferred an appeal before the learned First Additional District Judge, Mahasamund (C.G.). After hearing the parties, lower Appellate Court set-aside the judgment and decree only on the ground that order passed by learned Tehsildar dated 15.04.1999, could not be challenged, cannot be the sole ground for passing the decree in favour of the Plaintiffs. Hence, this Second Appeal.

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The present appeal was admitted vide order dated 05.04.2022 of this Court on the following substantial question of law:-

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“ Whether the learned First Appellate Court was justified in dismissing the appeal filed by the Defendant though the finding has been recorded in favour of the Defendant”?

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Mr. Keshav Dewangan, learned Counsel appearing for the Appellants herein/Plaintiffs submits that the lower Appellate Court recorded a finding that the trial Court has not considered the relevant facts and order passed by the trial Court is a non application of mind, therefore, the lower First Appellate Court has recorded a finding in paragraph 29 of its judgment, stating that “ववदददवरवपसत अपदलसवरहदनहहननसनननरसतनकयवजवतवहह| सवथहद ववददगण / उतरववददकमवमक०१सन०६दवरवपसत ववदननरसतहहतवहह|". According to the Counsel, it is apparently contrary to paragraph 28 of the judgment passed by the lower First Appellate Court vide judgment dated 06.01.2017. Learned Counsel further submits that on perusal of Paragraph 27 & 28 of the impugned judgment of the Appellate Court, it appears that lower First Appellate Court arrived on the conclusion that the judgment passed by the trial Court is not accordance with law. While passing the decree in Paragraph 29 of the judgment, lower First Appellate Court due to typographical mistake mentioned that “ववदददवरवपसत अपदलसवरहदनहहननसनननरसतनकयवजवतव हह| सवथहदववददगण / उतरववददकमवमक०१सन०६दवरवपसत ववदननरसत

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हहतवहह|" Thus, it prayed by the Counsel that the matter may be remanded back to the First Appellate to rectify the above typographical mistake/to decide the appeal afresh in accordance with law.

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Learned Counsel appearing for the Respondents opposes the argument advanced by learned Counsel for the Appellants and submit that apparently some typographical mistake would have been occurred in the judgment but, it is not clear that in which paragraphs (27, 28 & 29) have a typographical error, therefore, the matter may be remanded back to the lower First Appellate Court and it may be decided afresh in accordance with law.

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I have heard learned counsel appearing for the parties and went through the record with utmost circumspection.

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On perusal of paragraphs 27 & 28 of the impugned judgment of the First Appellate Court, it appears that the Appellate Court recorded the finding in favour of the Defendant but, in paragraph 29 of the judgment, the Appellate Court dismissed the appeal filled by the Respondent no.1 herein/Defendant No.1 mentioning that the appeal preferred by the Plaintiffs is dismissed. Apparently, it is an error on record. Once the Appellate Court recorded the finding in favour of the Defendant inspite of the fact that the appeal was preferred by the Defendant, the appeal was dismissed mentioning that the appeal was filed by the Plaintiffs, therefore, it is not clear that the finding recorded by the Appellate Court in Paragraphs 27 & 28 is recorded due to typographical mistake or the finding recorded in Paragraph 29 of the judgment is also recorded due to typographical mistake. Looking to the above, I am of the view that the matter should be remitted back to the lower First Appellate Court for deciding the appeal afresh on merits.

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Resultantly, question of law formulated for dismissal of the appeal is decided as 'negative' and as a result of decision on the question of law formulated for decision of this appeal, the appeal is allowed. The impugned judgment and decree of First Appellate Court is hereby set-aside.

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The First Appeal is remitted back to the First Additional District Judge, Mahasamund (C.G.) for deciding the appeal afresh on merits providing opportunity of hearing for both the parties. The parties are also directed to remain present before the lower First Appellate Court on 25.08.2022 for further hearing of the appeal.

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12.Record of the lower Court be also remitted back. No order as to cost(s).

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Sd/- (Arvind Singh Chandel) Judge

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Shubham

Janki Bai v. Smt. Budhobai

Case brief

What is this about?

What did the court decide?

Janki Bai v. Smt. Budhobai

Case brief

What is this about?

What did the court decide?

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