Aamla Bai And Another vs Kirtan And Others
2021 Latest Caselaw 706 Chatt

                                 1

                                                                    NAFR
      HIGH COURT OF CHHATTISGARH AT BILASPUR
                Second Appeal No. 198 of 2007
               Judgment reserved on 23/06/2021
              Judgment delivered on 29/06/2021


1. Aamla     Bai,     Aged   about      70   years,      W/o     Chhaga
  Rathore,      R/o     Village        Bhadaura,    Tahsil       Pendra
  Road, Distt. Bilaspur, Chhattisgarh.

2. Kali Bai (died) through LRs. :­

  (a). Gore Lal, Aged about 52 years, S/o Sukhiram
  Rathore, Cultivator, R/o Village Bhadaura, Tahsil
  Pendra Road, Distt. Bilaspur, Chhattisgarh.

                                        ­­­Appellants/Plaintiffs

                                Versus

 1. Kirtan (died and deleted).

 2. Kanwar Singh (died and deleted).

 3. Gaya,     Aged     about     30     years,     S/o   Late      Mote
   Rathore.

 4. Gangu,     Aged     about     22     years,    S/o    Late     Mote
   Rathore.

 5. Sheela,    Aged     about     37     years,    D/o    Late     Mote
   Rathore.

 6. Jamuni Bai, Aged about 21 years, D/o Late Mote
   Rathore.

   All R/o Village Bhadaura, Tahsil Pendra Road,
   Distt. Bilaspur, Chhattisgarh.

 7. State     of      Chhattisgarh,          Through      Collector,
   Bilaspur, Chhattisgarh.

                                  ­­­ Respondents/Defendants

For Appellants :­ Mr. S.D. Rajas, Advocate For Respondents :­ Mr. Om Kukreja, Advocate For State :­ Mr. Ravi Bhagat, Dy. G.A.

Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Judgment

1. This second appeal preferred by the

appellants/plaintiffs was admitted for hearing

on 17/11/2007 by formulating the following

substantial questions of law :­

"Whether the lower appellate Court was justified in reversing the judgment and decree passed by the trial Court on the following grounds :­ (A) that the appellants/plaintiff had failed to prove that Mst. Sunderbai had obtained possession of the suit lands in execution of the judgment and decree dated 14­12­1961 passed by the 2nd Civil Judge Class I, Bilaspur in Civil Suit No. 267­ A/1959;

(B) that there was non­joinder of necessary parties and;

           (C)   that  the   appellants/plaintiff        had
           failed   to   prove  that   they   were        in
           possession of the suit lands."

[For the sake of convenience, the parties will

hereinafter be referred to as per their status

and ranking given in the plaint before the trial

Court.]

2. The two plaintiffs filed a suit for permanent

injunction stating inter alia that with respect

to the suit land situated at Village Bhadaura,

Tahsil Pendra Road, District Bilaspur

admeasuring 3.62 acres in total, their mother

Sunderbai had filed Civil Suit No. 267­A/59

namely Mote Rathore and one Mohan in which

plaintiffs' mother was declared to be the

title­holder of the suit land and she was also

held entitled for decree for possession by

judgment and decree dated 14/12/1961 (Exhibit

P/7) and since no appeal or revision was

preferred against that, it has attained

finality. After the death of plaintiffs' mother,

the names of the plaintiffs were recorded in the

revenue records on 11/10/1985. It was further

pleaded that on 25/04/1940, plaintiffs sold some

part of the suit land to Dhela Bai, Natthu,

Narayan Das, and Purushottam and thereafter,

purchasers from plaintiffs have been in

continuous possession of the said suit land and

only 1.65 acres out of the total suit land

remained with the plaintiffs, which got mutated

by the defendants in their names after the

decision of the civil suit in collusion with the

Revenue Officer. On appeal being preferred, the

matter was remanded by the Commissioner to the

lower Revenue Officer which led the plaintiffs

to file the suit for permanent injunction

restraining the defendants from interfering with

their possession.

3. Defendants No. 1 to 4, 6 and 8 filed their

written statement and opposed the plaint

averments stating inter alia that plaintiffs'

suit is bad for non­joinder of necessary party

as Dhela Bai and Natthu, being purchasers from

the plaintiffs, ought to have been impleaded as

a party/defendant in the suit. It was also

pleaded that instead of plaintiffs, defendants

are in possession of the suit land, as such,

plaintiffs are not entitled to get decree for

permanent injunction in their favour.

4. Learned trial Court, after appreciation of oral

and documentary evidence on record, decreed the

suit vide its judgment and decree dated

12/02/2004 holding that plaintiffs are title­

holders of the suit land and their suit is

within limitation and it is not bad for non­

joinder of necessary party. On appeal being

preferred by the defendants, learned first

appellate Court allowed the appeal by reversing

the judgment and decree of the trial Court vide

its impugned judgment and decree dated

22/02/2007 against which this second appeal

under Section 100 of CPC has been preferred by

the appellants/plaintiffs in which substantial

questions of law have been framed and set out in

the opening paragraph of this judgment.

5. Mr. S.D. Rajas, learned counsel appearing on

behalf of the appellants/plaintiffs, would

submit that the first appellate Court went

absolutely wrong in holding that plaintiffs are

not in possession of the suit land by recording

a finding which is perverse and contrary to the

record and it further erred in holding that

Dhela Bai and Natthu, being purchasers from

plaintiffs, are necessary parties in the suit,

particularly when plaintiffs have not claimed

any relief against them, as such, the judgment

and decree passed by the first appellate Court

deserves to be set aside.

6. Mr. Om Kukreja, learned counsel appearing on

behalf of respondents No. 1 to 6/defendants No.

1 to 4, 6 and 8, would submit that the first

appellate Court has rightly held that plaintiffs

are not in possession of the suit land as

decree for possession granted in favour of

plaintiffs' mother was never executed and

possession over the suit land was never

delivered from defendants' father Mote Rathore

and one Mohan and the plaintiffs did not even

enter into witness box. He would rely upon the

decisions rendered by the Supreme Court in the

matters of Vidyadhar v. Manikrao & Anr.1,

Anathula Sudhakar v. P. Buchi Reddy (dead) by

LRs. & Ors.2, Agnigundala Venkata Ranga Rao v.

Indukuru Ramachandra Reddy (dead) by LRs. &

Ors.3 and Mohinder Kaur v. Sant Paul Singh 4 to

submit that the instant appeal deserves to be

dismissed.

7. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

Answer to Substantial Questions of Law (A) &

C :­

8. It is not in dispute that in Civil Suit No. 267­

A/59 filed by plaintiffs' mother Sunderbai

against defendants No. 1 to 6's father Mote

1 (1999) 3 SCC 573 2 (2008) 4 SCC 594 3 (2017) 7 SCC 694 4 (2019) 9 SCC 358

Rathore and one Mohan, decree for declaration of

title and delivery of possession was granted in

favour of Sunderbai vide Exhibit P/7.

9. It is the case of the plaintiffs that the decree

granted in favour of Sunderbai was executed and

her name was also recorded in the revenue

records and thereafter, they came to be in

possession of the suit land. The suit land

originally admeasured 3.62 acres, out of which

plaintiffs' mother Sunderbai had already sold

0.40 acres and after her death, plaintiffs sold

0.32 acres of land to one Dhelabai, 0.87 acres

of land to Natthu, 0.24 acres of land to some

other person and again, 0.14 acres to Natthu by

four separate sale deeds and delivered the

peaceful possession of the said suit lands to

the purchasers and the remaining part of the

suit land admeasuring 1.65 acres is in

possession of the plaintiffs and their names had

also been recorded in the revenue records, but

despite decree of possession passed against him

in the earlier civil suit, defendants No. 1 to

6's father Mote Rathore got his and Mohan's name

recorded in the revenue records as title­holders

of 1.65 acres of suit land which necessitated

the plaintiffs to file suit for permanent

injunction claiming that they are in possession

of the suit land pursuant to the decree granted

by the trial Court in favour of their mother

Sunderbai, but defendants No. 1 to 6's father

Mote Rathore malafidely got his and Mohan's name

recorded in the revenue records, as such,

defendants be restrained from interfering with

their possession over 1.62 acres of suit land.

10. Learned trial Court decreed the suit of the

plaintiffs holding that they have been in

possession of the suit land after the death of

her mother Sunderbai, whereas on appeal being

preferred, learned first appellate Court

interfered with the decree granted by the trial

Court in favour of the plaintiffs.

11. Since the suit is for permanent injunction

simpliciter, the main question is, whether

plaintiffs were in possession of the suit land

on the date of institution of the suit ?

12. It is the case of the plaintiffs that pursuant

to the decree passed by the trial Court in Civil

Suit No. 267­A/59, their mother Sunderbai came

to be in possession of the suit land and also

got her name mutated in the revenue records, but

after her death, in the year 1990, defendants

No. 1 to 6's father Mote Rathore got his name

mutated in the revenue records and the revenue

proceedings were kept pending and ultimately,

when the proper order was not passed in the

revenue Court, plaintiffs preferred the instant

suit.

13. Sukhiram (P.W. 1), who is the husband of

plaintiff No. 2 Kali bai, has clearly stated in

his statement before the trial Court that

pursuant to the decree of possession granted by

the trial Court in favour of plaintiffs' mother

Sunderbai in the earlier civil suit, the decree

was executed and he was also present on that

day. He has also stated in paragraph 11 that

though no formal proceeding was filed, but

possession of the suit land was delivered to

Sunderbai by Mohan. He has further admitted to

the fact that Mote Rathore, predecessor­in­title

of the defendants, is not in possession of the

suit land. As such, in the cross­examination

made by counsel for the defendants, P.W. 1

Sukhiram has clearly stated that decree for

possession granted in the earlier suit was put

to execution, and Sunderbai had taken

possession from Mohan, one of the defendants in

the earlier suit.

14. Similarly, Narayan Das (P.W. 2), Babaram (P.W.

3), Natthulal (P.W. 4) and Heeramani (P.W. 5),

who are purchasers/their LRs. of about 2 acres

of suit land from the plaintiffs by four

separate sale deeds, have firmly maintained that

plaintiffs are in possession of the suit land

admeasuring 1.62 acres after having sold the

rest of the suit land to them.

15. Likewise, defendant No. 2 Kunwar Singh (D.W. 1)

(now deceased), who is son of Mote Rathore,

though examined himself in the trial Court, but

he failed to state anything that plaintiffs are

not in possession of the suit land. Not only

this, but Exhibit D/11, which is the order of

S.D.O dated 10/04/1997 wherein the plaintiffs

challenged the order of the Tahsildar dated

20/07/1995, though the appeal stood dismissed,

but it has been held that execution of decree

passed in the earlier civil suit has been done

after 12 years. As such, there is overwhelming

evidence on record to hold that decree for

possession passed in favour of plaintiffs'

mother Sunderbai in the earlier civil suit was

executed and Sunderbai was placed in possession

of the suit land admeasuring 3.62 acres out of

which 2 acres of land has been sold by the

plaintiffs in favour of Dhelabai, Nathhulal,

Purushottam and Narayan Das, who are in

possession of their respective purchased lands

and the rest of the suit land admeasuring 1.62

acres is in possession of the plaintiffs which

clearly appears from the statement of plaintiffs

and other witnesses. Consequently, the

substantial questions of law (A) and (C) are

answered in favour of the plaintiffs and against

the defendants. The first appellate Court

absolutely erred in reversing the findings

recorded by the trial Court in this regard.

Answer to Substantial question of law - (B) :­

16. Plaintiffs have filed the instant suit only for

1.62 acres of suit land. They have not claimed

any relief whatsoever qua the alienation of 2

acres of suit land made by their mother and them

in favour of the four purchasers therefore, the

said purchasers are neither necessary nor proper

party in the suit and thus, the suit is not bad

for non­joinder of necessary party. As such,

substantial question of law (B) is also answered

in favour of the plaintiffs and against the

defendants.

17. As a fallout and consequence of the aforesaid

discussion, it is held that the first appellate

Court did not consider the evidence of the

plaintiffs and defendants in its proper

perspective and gravely erred in reversing the

judgment and decree passed by the trial Court.

Consequently, the judgment and decree passed by

the first appellate Court is hereby set aside

and that of the trial Court is restored.

18. The second appeal is allowed to the extent

indicated herein­above with no order as to

cost(s).

19. Decree be drawn­up accordingly.

Sd/­ (Sanjay K. Agrawal) Judge

Harneet