Rajkumar Vs Dwasram

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2024:CGHC:37900

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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S.A No.198 of 2020

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Rajkumar S/o Kaushal Prasad Aged About 42 Years R/o Village Devraha, P.H.N. 04, Tah- Bilaigarh, District - Balodobazar-Bhatapara Chhattisgarh, Dwara/jariye Aamukhtiyaar Devendra Kumar S/o Arjunlal Age 34 Years, R/o Village Devraha, Teh- Bilaigarh, District BalodabazarBhatapara Chhattisgarh ... Petitioner

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versus

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Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2024.09.26 17:18:13 +0530

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1 - Dwasram S/o Gujraj Age 65 Years, Village Devraha, P.H.N.04, Tah.Bilaigarh, District Balodabazar-Bhatapara Chhattisgarh, Dwara Khaas Mukhtyaar Chitranjan Kaiwartya S/o Dwasram, Age 36 Years, R/o Village Devraha, P.H.N.04, Tah- Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh

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2 - Sukhram S/o Ishwar Aged About 65 Years R/o Village Sell/sutiyapara, Tahsil Kasdol, District Balodabazar Bhatapara Chhattisgarh

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3 - Anita D/o Salikram W/o Dewvarth, R/o Village Sinodha, Tahsil Kasdol, District Balodabazar-Batapara Chhattisgarh

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4 - Sarita D/o Salikram W/o Tulsi, R/o Village Tundri, Tah - Bilaigarh, District Balodabazar-Bhatapara Chhattisgarh

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5 - Hemant S/o Salikram R/o Village Sell, Tehsil Kasdol, District Balodabazar-Bhatapara Chhattisgarh

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6 - Laxminarayan S/o Salikram R/o Village Pasid, Tahsil Kasdol, District Balodabazar-Bhatapara Chhattisgarh

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7 - Pushpendra S/o Salikram R/o Village Sell, Tahsil Kasdol, District Balodabazar Bhatapar Chhattisgarh

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8 - Bhagmati D/o Ishwar Aged About 58 Years W/o Seukram, R/o Village Motinpur, Tahsil Kasdol, District Balodabazar-Bhatapara Chhattisgarh

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9 - Sakun D/o Ishwar Aged About 52 Years W/o Satrughan, R/o Village Hardi, Tahsil Lavan, District Balodabazar-Bhatapara Chhattisgarh

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10 - Ramcharan S/o Kariya Aged About 64 Years R/o Village Motinpur, Tahsil Kasdol, District Balodabazar Bhatapara Chhattisgarh

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11 - Vimla D/o Koshal Aged About 45 Years W/o Ramakant, R/o Village Chandibazar, Tahsil Abhanpur, District Raipur Chhattisgarh

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12 - Kumar D/o Koshal Prasad, W/o of Narendra Kumar, Aged About 39 Years R/o Village Balco/Nayarishda Bhadarpara, Tah.- Korba, District Korba Chhattisgarh

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13 - Dudmath S/o Kaushal Aged About 35 Years R/o Village Devraha, P.H.N.04, Tahsil Bilaigarh, District Balodabazar-Bhatapara Chhattisgarh,

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14 - Shyam Kunwar Wd/o Late Kaushal Prasad Aged About 60 Years R/o Village Devraha, P.H.N. 04, Tahsil Bilaigarh, District BalodabazarBhatapara Chhattisgarh

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15 - Ramesh Kumar S/o Late Samajilal Aged About 42 Years R/o S.A.C.D. Colony Kosabadi Quarter No. OD/401, Post Kosabadi, Tahsil Korba, District Korba Chhattisgarh

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16 - Parwatbai D/o Samajilal Aged About 46 Years R/o S.A.S.D. Colony Kosabadi, Quarter No. OD/32, Post Kosabadi, Tahsil Korba, District Korba Chhattisgarh

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17 - Perabai D/o Samajilal Aged About 43 Years R/o S.A.S.D. Colony Kosabadi, Quarter No. OD/401, Post Kosabadi, Tahsil Korba, District Korba Chhattisgarh

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18 - Neerabai D/o Samajilal Aged About 36 Years W/o Ramdhin, R/o Dalganjdafai Chirmiri, Tahsil Chirmiri, District Koriya Chhattisgarh,

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19 - Bitawan Wd/o Late Samajilal Aged About 63 Years R/o S.A.S.D. Colony Kosabadi, Quarter No. OD/401, Post Kosabadi, Tahsil Korba, District Korba Chhattisgarh,

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20 - State Of Chhattisgarh through Collector, Balodabazar, District Balodabazar Bhatapara Chhattisgarh ... Respondents

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For Appellan : Ms. Kavita Tiwari on behalf of Shri Abdul Wahab Khan, Advocates. For : Shri Santosh Soni, G.A. Respondent/State

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Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board

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25.09.2024

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This Second Appeal has been preferred against the judgment and decree dated 30.01.2020 passed by the 3^rd Additional District Judge,

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Baloda Bazar in Civil Appeal No.83-A/2018 whereby, while affriming the finding recorded in the judgment dated 31.10.2018 passed by the Civil Judge, Class-2, Bilaigarh, District Baloda Bazar in Civil Suit No.4-A/2013 wherein, it was held that Respondent No.1/Plaintiff has not proved his title on the subject land, the Appeal was partly allowed by holding that Respondent No.1/Plaintiff is in possession of the subject land bearing Khasra No.849/2 admeasuring area 0.324 hectares situated at Village Devrah and permanent injunction has been granted in his favour with an observation that the Appellant/Defendant and other Respondents/Defendants shall not dispossess Respondent No.1/Plaintif without due procedure of law.

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Necessary facts for adjudication of the case are that Respondent No.1/Plaintiff has filed a civil suit for declaration of title and permanent injunction against the Appellant and Respondents No.2 to 19 making an averment inter alia that his name has been recorded in the suit property and further he is in peaceful possession of the said property for the last 23 years, which he has purchased for a consideration of Rs.30,000/from Chamarin Bai, D/o Jodhram Kewat through an unregistered sale deed dated 03.06.1991(Ex.P-1) and Chamarin Bai has also handed over the possession to him. Earlier, the said land was in the joint name of Chamarin Bai, D/o Jodhram Kewat and Mehtarin, S/o Kangalu but at the time of partition, the said land was received by Chamarin Bai. During their life time, Chamarin Bai and her son Kaushal Prasad have never raised any objection. After the death of Kaushal Prasad, his sonAppellant herein/Defendant No.1-Raj Kumar has raised an objection

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and filed the Appeal before the Sub Divisional Officer, Bilaigarh and challenged the mutation, which was in favour of Respondent No.1/Plaintiff. Hence, the Civil Suit has been filed. The Appellant and the other Defendants have, in their written statements, denied the averments made in the Plaint and stated that the Defendants are in possession of the subject land and the name of Respondent No.1/Plaintiff was wrongly recorded in the revenue records and the subject land was never sold by Chamarin Bai and Mehtarin in his favour and further stated that no partition took place between Chamarin Bai and Mehtarin.

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Based on the pleadings made by the parties, the trial Court has framed as many as 3 issues. Respondent No.1/Plaintiff has examined his son Chitranjan Kumar (PW-1), Gotilal (PW-2), Shyamlal (PW-3), witness of agreement to sale (Ex.P-1) Jai Prakash (PW-4) and Nandram (PW-5). As the Appellant and the other Defendants have been proceeded ex parte on 23.10.2018, therefore, no evidence was adduced.

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After evaluating the evidence, the trial Court has reached to the conclusion that Repondent No.1/Plaintiff has failed to prove his title over the subject land on the basis of unregistered sale deed (Ex.P-1) but has taken an inconsistent plea for the adverse possession. As Respondent No.1/Plaintiff has also failed to prove as to on what basis, his name was got mutated in the revenue records though his possession was recorded in Khasra Panchsala from 2001-02 to 2004-05 (Ex.P-3), therefore, the trial Court has reached to the conclusion at para-13 of its

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judgment that he is in prima facie possession of the subject suit property since 2001-02. After dismissal of the suit, Respondent No.1/Plaintiff has filed the Appeal and the appellate Court has affirmed the finding recorded by the trial Court that the Appellant has failed to prove his title over the subject land and reached to the conclusion that Respondent No.1/Plaintiff would be in possession of the suit property unless he is evicted by a due course of law and granted him protection by holding that the Appellant and other Defendants shall not dispossess him from the subject land without due procedure of law.

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Learned Counsel appearing for the Appellant/Defendant No.1 fairly admits that the Appellant/Defendant has not adduced any evidence to establish his possession over the subject property. She, however, submits that the appellate Court has wrongly allowed the Appeal in part and the trial Court has rightly dismissed the civil suit in its entirety.

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Heard learned Counsel for the Appellant and perused both the orders impunged as also the entire record with utmost circumspection.

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After perusing the record, it is explicit that a concurrent finding of fact has been recorded by the trial Court as well as the appellate Court with regard to the possession of Respondent No.1/Plaintiff over the subject suit property. The Appellant and other Defendants have not adduced any evidence before the trial Court and even when the Respondent/Plaintiff has filed the First Appeal, no cross Appeal has been filed.

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Taking into consideration the evidence available on record, which shows that the Plaintiff witnesses have proved the fact with regard to possession of Respondent No.1/Plaintiff over the subject property, which is also corroborated by the revenue records though the unregistered agreement to sale (Ex.P-1) confers no right in his favour, this Court is of the opinion that the 1^st appellate Court has rightly reached to the conclusion that unless Respondent No.1/Plaintiff stands dispossesed by a due course of law, he shall be protected by law and has rightly granted him limited protection by partly allowing the Appeal, therefore, there appears to be no error on the part of the 1^st appellate Court on such aspect.

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In view of the foregoing, I do not find any question of law, much less the substantial question of law, which arises for determination in this Appeal.

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Accordingly, the Appeal is dismissed at admission stage itself. There shall be no order as to costs.

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Priya

Rajkumar v. Dwasram

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Rajkumar v. Dwasram

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