Suresh Singh vs (Deleted) Kaushalya Devi
2021 Latest Caselaw 279 Chatt

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                                                          NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR
            Second Appeal No.192 of 2004
  Suresh Singh, S/o Chitrabhan Singh, Aged about 48
  years, R/o Village: Dumarpara, Dhaneli, Tehsil:
  Sakti, Distt.Janjgir­Champa (CG)
                            ­­­­ Appellant/Defendant No.1
                         Versus
1. Kaushalya Devi (died and deleted)
2. Sarla   Singh,   Wife   of   Mithilesh   Singh,   D/o
   Ramashankar Singh, Aged about 35 years, R/o. Village:
   Naya Baradwar, Tehsil: Sakti, Distt. Janjgir­Champa
   (CG)
                                              ­­­­ Plaintiffs
3. Sumer Singh,   S/o   Chitrabhan   Singh,    Aged   about   46
   years,
4. Suryasen Singh (died) through LR's
  4.1 Ganesh, aged about 45 years, son of late Suryasen
  Singh
  4.2 Smt.Laxmi, aged about 42 years, wife of Mangal
  Singh @ Manglu, daughter of Late Suryasen Singh
  4.3 Sanjay, aged about 40 years, son of Late Suryasen
  Singh
  4.4 Smt.Lata, aged about 41 years, wife of Shri Shyam
  Sunder Singh, daughter of Late Suryasen Singh
  4.5 Ajay, aged about 38 years, son of late Suryasen
  Singh
  4.6 Kundan, aged about 35 years, son of Late Suryasen
  Singh
  All are resident of Village - Dhanelibhata, Village
  Panchayat - Dumarpara, Tahsil Sakti, Distt.Janjgir­
  Champa (CG)
  4.7 Smt.Rinki, aged about 40 years, daughter of Late
  Suryasen Singh
  4.8 Smt.Pinki, aged about 36 years, daughter of Late
  Suryasen Singh, wife of Shri Dhiraj Chauhan.
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    Both   are    resident        of   Sonmudapara     Raigarh,
    Distt.Raigarh (CG)
  5. Balbhadra alias Balram Singh, S/o Chitrabhan Singh,
     Aged about 42 years.
  6. Krishna   Kumar   Singh   alias   Maldev        Singh     S/o
     Chitrabhan Singh, Aged about 40 years.
  7. Amar Singh,   S/o   Chitrabhan    Singh,   Aged   about   38
     years.
  8. Ranjit Singh, S/o Chitrabhan Singh, Aged about 35
     years.
    Respondents No.3 & 5 to 8 are residents of Village:

Dumarpara (Dhaneli), Tehsil: Sakti, District:Janjgir­ Champa (CG) Respondents 3 to 8 all are ex­parte before the trial Court and appellate Court.

­­­­Respondents

For Appellant/Defendant No.1 :

Mr.A.N.Bhakta, Advocate

For Respondent No.2/Plaintiff No.2:

Mr.Ravindra Agrawal, Advocate For other Respondents: None present

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

14/06/2021

1. Proceedings of this matter have been taken­up through

video conferencing.

2. This second appeal preferred by defendant No.1 was

admitted for hearing on 7.7.2015 by formulating the

following substantial question of law:­

"Whether the findings of the first appellate court regarding the admissibility of Ex.­P/8

is perverse"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

3. The suit land bearing Khasra No.310/1 area 0.06 acre

was earlier held by one Chitrabhan Singh. It is the

case of the plaintiffs that Chitrabhan Singh, father

of defendants No.1 to 7, sold the suit property to

original plaintiff­Ramashankar Singh (who died during

pendency of the suit in the year 1956) on payment of

₹50 by delivering the possession and he thereupon

constructed the house and residing therein.

Thereafter, defendant No.1 on his behalf and on

behalf of others executed the document (Ex.P­8) on

18.4.62 acknowledging the sale made by his father,

but thereafter vide Ex.P­1 defendant No.1 got his

name mutated on 11.4.89 necessitating for filing the

suit for permanent injunction restraining the

defendants from interfering with his possession.

4. Resisting the suit, defendant No.1 filed his written

statement disputing the plaint averments and also

claimed possession of the suit land from the

plaintiff in counter­claim filed by him stating

inter­alia that his father has not transferred any

land in favour of the plaintiff, therefore, he being

title­holder is entitled for decree of possession.

5. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment and decree dated 5.3.2002, dismissed the

suit as well as counter­claim of defendant No.1 and

held that the plaintiff has established his

possession over the suit land, but defendant No.1 is

title­holder of the suit land. Feeling aggrieved

against the judgment and decree of the trial Court,

only the plaintiff preferred first appeal against

dismissal of the suit, however, defendant No.1 did

not question the part of decree by which his counter­

claim has been dismissed, as such, dismissal of

counter­claim and finding of the trial Court that the

plaintiff is in possession of the suit land has

become final. In first appeal preferred by the

plaintiff, the first appellate Court clearly come to

the conclusion that the plaintiff is in settled

possession of the suit land and document (Ex.P­8) has

been impounded pursuant to the order of the trial

Court dated 15.4.2000 and requisite stamp duty has

been paid by treating it as conveyance. The first

appellate Court further held that even if Ex.P­8 is

not taken to be sale deed, it can be read for

collateral purpose looking to the possession of the

plaintiff. Questioning the judgment and decree of the

first appellate Court, this second appeal under

Section 100 of the CPC has been filed by defendant

No.1, in which one substantial question of law has

been formulated which has been set­out in opening

paragraph of this judgment for sake of completeness.

6. Mr.A.N.Bhakta, learned counsel for the

appellant/defendant No.1, would submit that the first

appellate Court is absolutely unjustified in granting

decree for permanent injunction in favour of the

plaintiff. He would further submit that since

question of title is involved, the plaintiff ought to

have file a comprehensive suit for declaration of

title and could have claimed consequential relief of

permanent injunction, but his suit for permanent

injunction simpliciter was not maintainable in light

of judgment rendered by the Supreme Court in the

matter of Ratnagiri Nagar Parishad v. Gangaram

Narayan Ambekar and others1. He would also submit

that document (Ex.P­8) is absolutely inadmissible in

evidence and therefore, the judgment and decree of

the first appellate Court deserves to be set aside.

7. On the other hand, Mr.Ravindra Agrawal, learned

counsel for respondent No.2/plaintiff No.2, would

submit that since the trial Court found the plaintiff

1 (2020) 7 SCC 275

in legal and valid possession and that finding has

attained finality, the first appellate Court is

absolutely justified in granting decree for permanent

injunction in his favour. He would further submit

that defendant No.1 did not take any plea that bare

suit for permanent injunction filed by the plaintiff

is not maintainable, otherwise, the plaintiffs could

have amended the suit, if any. However, the counter­

claim of defendant No.1 has already been dismissed

though incidentally, title of defendant No.1 was

found in his favour, as such, the appeal deserves to

be dismissed.

8. I have heard learned counsel for the parties and

considered their rival submissions made hereinabove

and also went through the records with utmost

circumspection.

9. Admittedly and undisputedly, the plaintiff only

brought a suit for permanent injunction simpliciter

on the basis of his settled possession purchased by

his father stating that vide Ex.P­8 defendant No.1

has acknowledged earlier sale and the plaintiff's

possession over the suit land, as such, in a suit

filed by the plaintiff, defendant No.1 not only

contested the suit of the plaintiff, but also laid

counter­claim claiming decree for possession over the

suit land. The trial Court while adjudicating the

issue of plaintiff's possession and title of

defendant No.1 held that the plaintiff is in settled

possession over the suit land vide para­29 and

dismissed the suit of the plaintiff and dismissed

counter­claim of defendant No.1 also. In appeal

preferred by the plaintiff, the first appellate Court

also affirmed the finding of the trial Court that the

plaintiff is in possession over the suit land

pursuant to purchase made by his father and said fact

has been acknowledged vide Ex.P­8. Since both the

Courts below have found that the plaintiff is in

possession over the suit land on the date of

institution of the suit, therefore, the first

appellate Court is justified in holding that the

plaintiff is entitled for decree of permanent

injunction.

10. So far as Ex.P­8 is concerned, the first

appellate Court has clearly held that it has been

impounded vide Court's order dated 15.4.2000 and

necessary stamp duty has been paid treating it as

conveyance and it can be used for collateral purpose

of looking into the possession of original plaintiff­

Ramashankar Singh stating that from the date of

institution of the suit he continued in possession of

the suit land for last 30 years and further relied

upon the statement of defendant No.1­Suresh Singh

that the plaintiff has not entered into suit premises

forcibly and it has been permitted by his father and

kachha & pakka house has been constructed by the

plaintiff himself and the plaintiff has purchased the

suit house from Chitrabhan Singh, father of defendant

No.1 and accepted the fact of sale between parties as

they are closely related to each other.

11. Submission of learned counsel for the

appellant/defendant No.1 that the plaintiff ought to

have filed a suit for declaration of title also

relying upon the judgment of the Supreme Court in the

matter of Ratnagiri Nagar Parishad (supra) is also

not helpful to defendant No.1 as both the Courts

below have recorded a finding that that the plaintiff

is in legal and valid possession over the suit land

since 1959 and even the plaintiff is in possession

over the suit land since the date of institution of

the suit and therefore, simpliciter suit for

permanent injunction was maintainable and he was not

required to file a suit for declaration of title also

particularly when defendant No.1 did not take any

specific objection in written statement filed by

before the trial Court, as such, this argument is not

available to defendant No.1.

12. Finding recorded by the first appellate Court

holding Ex.P­8 to be admissible and can be used for

collateral purpose of looking into the possession of

the plaintiff and further held the plaintiff to be

legal possession holder of the suit land are findings

of fact based on evidence available on record. It is

neither perverse nor contrary to record, as such, the

first appellate Court is absolutely justified in

granting decree for permanent injunction in favour of

the plaintiff, which is neither perverse nor contrary

to record. The substantial question of law is

answered in favour of the plaintiff and against

defendant No.1.

13. I do not find any merit in this second appeal.

The second appeal being devoid of merit is liable to

be and is hereby dismissed leaving the parties to

bear their own cost(s).

14. Appellate decree be drawn­up accordingly.

Sd/­

(Sanjay K.Agrawal) Judge B/­