Dismissed

Gyan Chand Jaiswal v. Om Prakash Jaiswal

Chhattisgarh HC3 Dec 2024SA/66/2021

Case brief

AI extract

What is this about?

In a second appeal regarding a property suit, the High Court of Chhattisgarh dismissed the appeal at the motion stage. Finding no substantial question of law, the Court held that it could not interfere with the concurrent findings of fact recorded by lower courts absent specific grounds under established Supreme Court precedents.

What did the court decide?

The second appeal was dismissed at the motion stage without delving into merits of the property dispute.

Gyan Chand Jaiswal Vs Om Prakash Jaiswal — Property and Title | Chhattisgarh HC (2024)

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2024:CGHC:47873

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 66 of 2021

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1 - Gyan Chand Jaiswal S/o Late Ram Kishun Aged About 77 Years R/o Gourella, Tahsil Pendra Road, District Gourella- Pendra- Marwahi Chhattisgarh (Plainfiff) (Earlier District Bilaspur Chhattisgarh), Now It Is District Gourella- Pendra- Marwahi Chhattisgarh

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---- Appellant

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versus

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1 - Om Prakash Jaiswal S/o Manik Chand Jaiswal Aged About 65 Years R/o Pendra, Tahsil Pendra Road, District Gourella- Pendra- Marwahi Chhattisgarh (Earlier District Bilaspur Chhattisgarh), Now It Is District Gourella- Pendra- Marwahi Chhattisgarh, District : Gaurela-Pendra-Marwahi, Chhattisgarh

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2 - Suresh Jaiswal S/o Manik Chand Jaiswal Aged About 62 Years R/o Pendra, Tahsil Pendra Road, District Gourella- Pendra- Marwahi Chhattisgarh (Earlier District Bilaspur Chhattisgarh), Now It Is District Gourella- Pendra- Marwahi Chhattisgarh

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3 - State Of Chhattisgarh Through The Collector Gourella- Pendra- Marwahi, District Gourella- Pendra- Marwahi Chhattisgarh (Defendant) (Earlier District Bilaspur Chhattisgarh), Now It Is District Gourella- Pendra- Marwahi Chhattisgarh

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---- Respondents ____________________________________________________________ For Appellant : Mr. Siddharth Dubey, Advocate For Respondent No.3/State : Mr. Ritesh Giri, P.L.

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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04/12/2024

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This second appeal U/s.100 of C.P.C. is filed by appellant/plaintiff questioning the legality and sustainability of the impugned judgment and decree dated 06.02.2021, passed in Civil Appeal No.12-A/2019,

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Digitally signed by BALRAM PRASAD DEWANGAN Date: 2024.12.24 13:07:16 +0530

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whereby, the learned Additional District Judge, Pendra Road, District – Bilaspur (C.G.) dismissed the appeal filed by appellant/plaintiff, upholding the judgment and decree dated 16.11.2018, in Civil Suit No.11-A/2011 wherein learned Civil Judge Class -2, Pendra Road dismissed the suit of the appellant/plaintiff.

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Facts relevant for disposal of this appeal are that appellant/plaintiff filed a suit for declaration of title and permanent injunction in respect of the suit land bearing Kh. No. 550/1, area 0.081 hectares 0.20 acres, situated at Gaurela pleading that he had a house and land in village Pendra which he gave to defendants in mutual family partition, obtained the suit land and has been occupying the same for more than 45 years by constructing a house over it. It is pleaded that there was partition between the father of plaintiff and grand-father of defendant in the year 1965 and on the basis of which the possession of the suit land was given to plaintiff. Plaintiff has been occupying the suit land by constructing a house and is residing since 1972. Defendants without any information have got the land mutated in their name and are trying to take possession of the suit land.

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Defendants No.1 & 2 submitted written statement denying the plaint averments. It was pleaded that neither the suit land was given to the plaintiff on partition nor he is occupying it for 45 years by constructing a house over it. It was further pleaded that grand-father of the defendants has purchased the suit land vide registered sale deed dated 01.01.1965 in which the defendants have constructed a pakka house and the said house was given to the plaintiff on rent. The plaintiff is residing as a tenant and he has not paid the rent amount for

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about 20 months. When defendants asked the plaintiff to vacate the suit property, he has filed this civil suit on false and frivolous grounds.

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Learned trial Court based on the pleadings made by respective parties has framed four issues and deciding them as under : Issue No.1 – whether the land situated at Pendra bearing Kh. No.550/1 area 0.20 acres are ancestral land of the plaintiff and defendant to be not proved. Issue No.2 – Whether the said suit land was obtained by father of plaintiff on oral partition in the year 1965 to be not proved. Issue No.-3 whether the plaintiff is in possession of the suit land as title holder since 1965 to be not proved and Issue No.4 whether defendants are trying to interfere with the legal possession of the plaintiff to be not proved and has dismissed the suit.

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The judgment and decree dated 16.11.2018 passed by the learned trial Court was put to challenge in an appeal by the appellant before the Additional District Judge, Pendra Road which also came to be dismissed upholding the judgment and decree passed by the learned trial Court. Hence, this second appeal was filed.

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Learned counsel for appellant/plaintiff would submit that the impugned judgment and decree passed by learned trial Court as well as learned First Appellate Court are perverse and bad in law. Both the learned Courts below have failed to properly appreciate the evidence brought on record of by appellant/plaintiff. It is contended that the suit property was obtained by the plaintiff on exchange and possession of plaintiff over the suit land remained undisputed, therefore, he is entitled to get permanent injunction on the ground of possession. Both the learned Courts below erred in overlooking the fact that mere mutation entry

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gives no title to the defendant. It is contended that appellant/plaintiff has been in continuous possession of the suit land for the last 45 years. Despite this, the defendants did not initiate any proceedings or suit to challenge the appellant/plaintiff's possession. Only after 45 years, they made attempts to disturb the possession of the appellant/plaintiff without any legitimate legal basis.

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I have heard learned counsel for appellant and also perused the records of the trial Court as well as First Appellate Court.

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According to the claim of plaintiff, grand-father of defendant Salikram and father of plaintiff Ramkishun were real brothers. The suit land is an ancestral property, which was acquired by the father of plaintiff through a mutual partition in 1965 in exchange for land and a house at Pendra that were recorded in his name. In order to prove his claim, plaintiff has examined himself as (P.W.-1), Shyma Chandrawanshi (P.W.-2) and Rammu Lal (P.W.-3) and produced original sale deed which is exhibited as (Ex.P-1) and copy of agreement (Ex.P-2C).

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According to the plaintiff, he purchased a house from Chirojiya on 26.04.1962 as per Ex.P-1. This house was later given to the defendants as part of a mutual partition, and in exchange, plaintiff received the suit land. The plaintiff further stated that, thereafter, the defendants had transferred the said house to their accountant. To support his claim, the plaintiff examined Shyama Chandrawanshi as P.W.2. In her testimony, she stated that at the insistence of Salikram, Omprakash had given the house to her husband. However, her statement does not clarify which house was being referred to.

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According to the evidence of defendants, the suit property was purchased by Salikram, grandfather of the defendants vide Ex.D-4, was registered in his name and land was registered in his sole ownership. The defendants have inherited the suit land from their ancestors. To support their case, the defendants have also submitted a map of the suit land (Ex.D-1), along with the Khasra and B-1 records (Ex.D-2), as well as Lal Kitab.

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The defendants have not denied the possession of the plaintiff over the suit land but stated that the plaintiff is in possession of the suit land as a tenant and that the tenancy is oral. It is the burden of plaintiff to prove his case but he has failed to establish that the suit land was acquired by him through partition, or to clarify when and how he came into possession. Thus the finding recorded by learned trial Court as well as by the First Appellate court, is a finding of fact, based on evidence available on record.

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Hon’ble Supreme Court in case of Navaneethammal vs. Arjuna Chetty reported in AIR 1996 SC 3521 , has held that the interference with the concurrent findings of the Courts below by the High Court under Section 100 of CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the Lower Court. Even assuming that another view is possible on re-appreciation of the same evidence that should not have been done by the High Court, as it cannot be said that the view taken by the First Appellate Court was based on no material.

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In the case of State of Rajasthan and Others vs. Shiv Dayal and Another, Reported in (2019) 8 SCC 637 , the Hon’ble Supreme Court has observed in para Nos. 14, 15 & 16 as under:-

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“14. True it is as has been laid down by this Court in several decisions that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). However, this rule of law is subject to certain well-known exceptions mentioned infra.

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15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance.

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16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [ Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar , 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)”

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The Hon’ble Supreme Court in the case of Sukhbiri Devi and Others vs. Union of India and Others reported in 2022 SCC OnLine SC 1322 while reiterating the view taken by the Apex Court in the case of Shiv Dayal and Another (supra), has held that interference with the concurrent findings in subsequent appeal can be made if it is pointed out that it has been passed dehors the pleadings or based on no evidence or based on misreading of material evidence or against the provision of law etc.

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In the case at hand no such ground is raised and available attracting substantial question of law. Second appeal is to be admitted only when the appeal involves substantial question of law.

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For the forgoing discussions and in light of the decisions of Hon’ble Supreme Court, I do not find any infirmity or illegality in the judgment passed by the learned trial Court and upheld by learned first appellate Court. Thus, having considered the concurrent finding recorded by both the Courts below, I do not find any substantial question of law to be involved in the instant case, hence, this appeal is dismissed at the motion stage itself.

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The Decree be drawn accordingly.

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The parties to bear their own costs.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Gyan Chand Jaiswal v. Om Prakash Jaiswal

Case brief

What is this about?

What did the court decide?

Gyan Chand Jaiswal v. Om Prakash Jaiswal

Case brief

What is this about?

What did the court decide?

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