Chattisgarh High Court
Janki Bai vs Smt. Budhobai on 14 July, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.291 of 2017
1. Janki Bai, W/o Late Laxmiprasad Nai, aged about 80 Years,
R/o Ward No.14, Pithaura, Tah. Pithaura, District
Mahasamund, Chhattisgarh.
2. Kaushlya Bai, D/o Kishun, Aged About 40 Years W/o Late
Laxmiprasad Nai, R/o Ward No.14, Pithaura, Tah. Pithaura,
District Mahasamund, Chhattisgarh.
3. Devnarayan S/o Late Laxmiprasad, Aged About 27 Years R/o
Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund,
Chhattisgarh.
4. Piha Bai D/o Late Laxmiprasad, Aged About 24 Years R/o
Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund,
Chhattisgarh.
5. Papiha Bai D/o Late Laxmiprasad, Aged About 24 Years R/o
Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund,
Chhattisgarh.
6. Purshottam S/o Late Laxmiprasad, Aged About 18 Years R/o
Ward No.14, Pithaura, Tah. Pithaura, District Mahasamund,
Chhattisgarh.
---- Appellants
Versus
1. Smt. Budhobai, W/o Late Faguwa Ram Dewangan, aged about
66 years, R/o Ward No.1, Ravanbhatha, Pithaura, Tah.
Pithaura, Distt. Mahasamund, Chhattisgarh.
2. State Of Chhattisgarh, Through Collector, Mahasamund,
District Mahasamund, Chhattisgarh.
---- Respondents
___________________________________________________________________
For Appellants : Mr. Keshav Dewangan, Advocate.
For Respondent No.1 : Mr. Amit Kumar, Advocate.
For Respondent No.2/State : Mr. Ashish Gupta, Panel Lawyer.
Hon'ble Shri Justice Arvind Singh Chandel
Judgment On Board
14/07/2022
1. The second appeal preferred by the Appellants herein/Plaintiffs
against the impugned judgment and decree dated 06.01.2017
passed by learned First Additional District Judge,
Mahasamund (C.G.) in Civil Appeal No. H 63 A/2014, arising
out of judgment and decree dated 18.08.2011 passed by
learned Civil Judge Class-II, Pithaura, District Mahasamund
(C.G.) in Civil Suit No.22A/2009, whereby in the Civil Appeal
the lower Appellate Court has dismissed the appeal mentioning
that the appeal preferred by the Plaintiffs has been dismissed,
whereas, the appeal was preferred by Defendant No.1.
2. Facts
of the case are that the Appellants herein/Plaintiffs have
filed a Civil Suit for possession of the suit premises on the
ground that they were the registered owner of the disputed
premises bearing Khasra No.206/4, Rakba 0.036, P.H. No.22,
situated in Village Pithaura (C.G.). The husband of Plaintiffs
No. 1 & 2 namely Laxmiprasad Nai purchased the suit
premises from one Pachkod through registered sale deed and
as per order dated 15.04.1999 passed by learned Tehsildar he
got his name mutated in revenue records. It was pleaded by the
Plaintiffs that in the year 1997, husband of Respondent No.1
herein/Defendant No.1 namely Faguwa Ram Dewangan
obtained the said suit premises on rent from Laxmiprasad Nai.
After the death of Laxmiprasad Nai, his wifes demanded rent
amount from Faguwa Ram then instead of giving rent, Faguwa
Ram filed a suit on the ground of adverse possession which
was dismissed on 17.01.2002. Thereafter, the plaintiffs filed
the suit for possession of the disputed premises. During
pendency of the suit, Faguwa Ram has died. His wife was
impleaded on record as his legal heir.
3. Respondent herein/Defendant No.1 in her written statement
denied all the averments made by the Plaintiffs in their plaint.
She also claims that on the basis of adverse possession, she is
the owner of the disputed premises. It was further pleaded by
her that the entire transaction between Late Laxmiprasad Nai
and Late Pachkod was illegal, therefore, no right was created in
favour of Late Laxmiprasad Nai.
4. After recording the evidence led by the parties, the trial Court
after appreciating the evidence on record vide order dated
18.08.2011, decreed the suit in favour of the Plaintiffs.
Aggrieved by the aforesaid judgment and decree, Defendant
No.1 preferred an appeal before the learned First Additional
District Judge, Mahasamund (C.G.). After hearing the parties,
lower Appellate Court set-aside the judgment and decree only
on the ground that order passed by learned Tehsildar dated
15.04.1999, could not be challenged, cannot be the sole ground
for passing the decree in favour of the Plaintiffs. Hence, this
Second Appeal.
5. The present appeal was admitted vide order dated 05.04.2022
of this Court on the following substantial question of law:-
"Whether the learned First Appellate Court was
justified in dismissing the appeal filed by the
Defendant though the finding has been recorded in
favour of the Defendant"?
6. Mr. Keshav Dewangan, learned Counsel appearing for the
Appellants herein/Plaintiffs submits that the lower Appellate
Court recorded a finding that the trial Court has not considered
the relevant facts and order passed by the trial Court is a non
application of mind, therefore, the lower First Appellate Court
has recorded a finding in paragraph 29 of its judgment, stating
that "ववदद दवरव पसततत अपदल सवरहदन हहनन सन ननरसत नकयव जवतव हह | सवथ हद
ववददगण / उतरववदद कमवमक ०१ सन ०६ दवरव पसततत ववद ननरसत हहतव हह |".
According to the Counsel, it is apparently contrary to
paragraph 28 of the judgment passed by the lower First
Appellate Court vide judgment dated 06.01.2017. Learned
Counsel further submits that on perusal of Paragraph 27 & 28
of the impugned judgment of the Appellate Court, it appears
that lower First Appellate Court arrived on the conclusion that
the judgment passed by the trial Court is not accordance with
law. While passing the decree in Paragraph 29 of the judgment,
lower First Appellate Court due to typographical mistake
mentioned that "ववदद दवरव पसततत अपदल सवरहदन हहनन सन ननरसत नकयव जवतव
हह| सवथ हद ववददगण / उतरववदद कमवमक ०१ सन ०६ दवरव पसततत ववद ननरसत
हहतव हह|" Thus, it prayed by the Counsel that the matter may be
remanded back to the First Appellate to rectify the above
typographical mistake/to decide the appeal afresh in
accordance with law.
7. Learned Counsel appearing for the Respondents opposes the
argument advanced by learned Counsel for the Appellants and
submit that apparently some typographical mistake would have
been occurred in the judgment but, it is not clear that in which
paragraphs (27, 28 & 29) have a typographical error, therefore,
the matter may be remanded back to the lower First Appellate
Court and it may be decided afresh in accordance with law.
8. I have heard learned counsel appearing for the parties and
went through the record with utmost circumspection.
9. On perusal of paragraphs 27 & 28 of the impugned judgment
of the First Appellate Court, it appears that the Appellate Court
recorded the finding in favour of the Defendant but, in
paragraph 29 of the judgment, the Appellate Court dismissed
the appeal filled by the Respondent no.1 herein/Defendant
No.1 mentioning that the appeal preferred by the Plaintiffs is
dismissed. Apparently, it is an error on record. Once the
Appellate Court recorded the finding in favour of the Defendant
inspite of the fact that the appeal was preferred by the
Defendant, the appeal was dismissed mentioning that the
appeal was filed by the Plaintiffs, therefore, it is not clear that
the finding recorded by the Appellate Court in Paragraphs 27 &
28 is recorded due to typographical mistake or the finding
recorded in Paragraph 29 of the judgment is also recorded due
to typographical mistake. Looking to the above, I am of the view
that the matter should be remitted back to the lower First
Appellate Court for deciding the appeal afresh on merits.
10. Resultantly, question of law formulated for dismissal of the
appeal is decided as 'negative' and as a result of decision on the
question of law formulated for decision of this appeal, the
appeal is allowed. The impugned judgment and decree of First
Appellate Court is hereby set-aside.
11. The First Appeal is remitted back to the First Additional
District Judge, Mahasamund (C.G.) for deciding the appeal
afresh on merits providing opportunity of hearing for both the
parties. The parties are also directed to remain present before
the lower First Appellate Court on 25.08.2022 for further
hearing of the appeal.
12. Record of the lower Court be also remitted back. No order as to
cost(s).
Sd/-
(Arvind Singh Chandel)
Judge
Shubham
