Laxminarayan Vs Indira Bai

¶1

1 / 6

¶2

2024:CGHC:37790

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

SA No. 78 of 2020

¶6

Laxminarayan S/o Shri Motilal Nirmalkar Aged About 55 Years Resident Of Bajrang Chowk, Kurmipara, Kurud , Tahsil Kurud , District Dhamtari Chhattisgarh...(Defendent)

¶7

... Petitioners

¶8

versus

¶9

Indira Bai Wd/o Late Sundarlal Nirmalkar, Aged About 60 Years, Resident Of Datar Road, Kurud , Tahsil Kurud District Dhamtari Chhattisgarh

¶10

... Respondents

¶11

For Petitioner : Mr. Sameer Uraon, Advocate on behalf of Mr. BP Sharma, Advocate For Respondent : Mr. RS Patel, Advocate

¶12

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

¶13

Judgment on Board

¶14

Digitally signed by SHYNA AJAY Date: 2024.09.26 16:00:01 +0530

¶15

25/09/2024

¶16

2 / 6

¶17

This Second Appeal has been preferred against the judgment and decree dated 8.1.2020 passed by the learned Additional District Judge, Circuit Court, Kurud, District Dhamtari in Civil Appeal No.34-A/2018, which in turn, arises out of the judgment and decree dated 27.1.2018 passed by the Civil Judge Class-I, Kurud District Dhamtari (CG) in Civil Suit in 52-A/2011.

¶18

By the impugned judgment and decree, the First Appellate Court has dismissed the appeal preferred by the appellant and thereby, afÏrmed the findings recorded by the trial Court.

¶19

So the short question that arises for consideration in this appeal is whether this second appeal involves any substantial question of law within the meaning of Section 100 of the C.P.C and whether such appeal should be admitted for final hearing?

¶20

The facts giving rise to this appeal lie in a narrow compass. The husband of the respondent/plaintiff namely Sundarlal Nirmalkar (since deceased {original plaintiff}) filed a Civil Suit on 20.1.2009 for permanent injunction and possession of the subject shop situated at Village Kurud District Dhamtari. In the said suit, the appellant herein has also filed a cross-suit claiming possession and title on the basis of the ‘Will’ executed on 11.6.2006 by Motim Bai. It has been averred in the plaint inter alia that the subject shop was initially allotted in the name of Motim Bai. Motim Bai died on 5.12.2007. After her death, as per the resolution passed by the Nagar Panchayat, Kurud, in its meeting

¶21

3 / 6

¶22

held on 30.3.2008, the name of the original plaintiff Sundarlal Nirmalkar was mutated and ultimately, he started depositing the rent before the Nagar Panchayat. The appellant, who is the close relative (nephew) of the plaintiff, on an assurance to look after the original allottee Motim Bai, entered into the subject property and remained in its possession for a considerable period of time. After the death of Motim Bai, when the appellant did not vacate the subject shop, the plaintiff instituted the suit.

¶23

The appellant/defendant in his written statement stated that he is the real nephew of late Motim Bai and late Motim Bai had purchased the Mulma of the subject shop by an unregistered sale-deed dated 14.12.1995 on a consideration of Rs.22,000/-. During the lifetime of Motim Bai, the appellant entered into and took possession of the subject shop and is doing business of laundry therein and is in its possession for last 14-15 years. After the death of Motim Bai, the original plaintiff, without informing the appellant, in a collusion manner, mutated his name in the concerned Nagar Panchayat. It was further averred that Motim Bai had executed a Will dated 11.6.2006 in favour of the appellant/defendant and he claimed title over the suit property by way of adverse possession based on the subject ‘Will’. Consequently, on the basis of the pleadings of the parties, the trial Court has framed as many as eight issues and after evaluating the evidence, it reached to the conclusion that since the mutation of the subject shop has taken place, the original

¶24

4 / 6

¶25

plaintiff is the lease holder of the subject property and the claim of the appellant/defendant has not been found proved on the basis of the subject Will by way of adverse possession . The concerned trial Court decreed the suit in favour of the original plaintiff and the appellant/defendant was directed to vacate the subject shop within a period of two months and permanent injunction was also granted. Against the said findings, the appellant/defendant has preferred an appeal. By way of appeal, the Appellate Court has afÏrmed the said findings recorded by the trial Court.

¶26

Learned counsel for the appellant would submit that the original granter-Nagar Panchayat has not been impleaded as party before the Court and further, the Municipality was also necessary party. He would further submit that Motim Bai had purchased the Mulma of the subject shop from one Teerath and during her lifetime, her name has been mutated in the record of the Nagar Panchayat. Thereafter, Motim Bai executed a Will in favour of the appellant/defendant and on the basis of the said Will, he is in possession of the subject shop since last 14-15 years and thereby, he became the owner of the subject shop/property by way of adverse possession. For the above submissions, leanred counsel would refer to Section 63 - Licensee’s right on revocation and Section 64- Licensee’s right on eviction, of the Indian Easements Right, 1882.

¶27

On the other hand, learned counsel for the respondent would

¶28

5 / 6

¶29

submit that as the name of the original plaintiff has duly been recorded in the record of the Nagar Panchayat, the appellant has no right to retain the possession. The appellant has taken a contrary plea of adverse possession, on the basis of which, no question of law much less substantial question of law arises in the appeal and the same is liable to dismissed.

¶30

Heard learned counsel for the parties and also perused the record with utmost circumspection.

¶31

Admittedly, the subject shop is recorded in the name of the original plaintiff and by way of communication vide Ex.D/7, the Nagar Panchayat has categorically informed the appellant herein with regard to his claim for mutation of the subject shop that the name of Sundarlal Nirmalkar (original plaintiff) has already been mutated vide the resolution taken in the meeting held on 30.3.2008 as per Agenda No.2. The appellant has not challenged the said resolution and this goes to show that a valid mutation has been made in favour of the original plaintiff. Hence, the decree passed by the trial Court, which was afÏrmed by the First Appellate Court, is based on proper appreciation of evidence on record.

¶32

Considering the submissions of learned counsel for the parties as also considering the facts and circumstances of the case and on perusal of the record of the case, I find absolutely no merit in this appeal as it involves no question of law much less substantial question of law within the meaning of Section100 of

¶33

6 / 6

¶34

C.P.C. and thus, it deserves to be dismissed in limine.

¶35

To conclude, there is no merit in the appeal. The appeal, involving no substantial question of law within the meaning of Section 100 of the C.P.C., fails and is hereby dismissed in limine

¶36

Sd/-

¶37

(Deepak Kumar Tiwari)

¶38

Judge

¶39

Shyna

Laxminarayan v. Indira Bai

Case brief

What is this about?

What did the court decide?

Laxminarayan v. Indira Bai

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Rananjay Singh Vs State of Chhattisgarh

Chhabi Agrawal Vs Sandeep Agrawal

Ajay Mahajan Vs Smt. Aruna Dighraskar

Masat Ram (Since Dead) through Lrs- (a) Mus. Sukhmani Bai Vs Parasnath Gupta

Smt. Biram Bai Vs Smt. Kalindari Bai Sahu

Rajkumar Vs Dwasram