Akadasia And Ors vs Puni Ram And Anr
2022 Latest Caselaw 5625 Chatt

                                                                      1


                                                                NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR
                Second Appeal No. 146 of 2014


               Judgment Reserved on 22.06.2022
               Judgment Delivered on 08.09.2022


1. Akadasia S/o Mohit Ram Aged About 54 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G.,
   Chhattisgarh

2. Firtin W/o Akadasia Aged About 52 Years R/o Tundri, Tah. Bilaigarh,
   Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

3. Dev Prasad S/o Akadasia Aged About 34 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

4. Kiran Bai W/o Dev Prasad Aged About 32 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

5. Saraswati D/o Akadasia Aged About 29 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

6. Sarju S/o Akadasia Aged About 27 Years R/o Tundri, Tah. Bilaigarh,
   Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

7. Bhagwati D/o Akadasia Aged About 24 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

8. Rukhmani D/o Akadasia Aged About 22 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G., District :
   Balodabazar-Bhathapara, Chhattisgarh

                                                       ---- Appellants

                              Versus

1. Puni Ram S/o Loknath Aged About 62 Years R/o Tundri, Tah.
   Bilaigarh, Distt. Raipur Now Baloda Bazar-Bhatapara C.G.,
   Chhattisgarh

2. State Of Chhattisgarh Thru- Collector, Baloda Bazar, Distt. Baloda
   Bazar-Bhatapara C.G., District : Balodabazar-Bhathapara,
   Chhattisgarh

                                                    ---- Respondents
                                                                                                  2


---------------------------------------------------------------------------------------------------

For Appellants                    :      Shri H.V. Sharma, Advocate
For Respondent No. 1              :      Shri Malay Jain, Advocate
For State                         :      Ms. Ishwari Gritlahre, Panel Lawyer

-------------------------------------------------------------------------------------------

Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment

1. Heard on admission.

2. The defendants have filed the Second Appeal under Section 100 of the C.P.C. being aggrieved by the judgment and decree dated 20.03.2014 passed by the learned District Judge, Baloda-Bazar District - Baloda-Bazar in Civil Appeal No. 06-A/2013, by which learned District Judge has affirmed the judgment and decree dated 05.10.2013 passed by the Civil Judge Class -2, Bilaigarh, District - Balodabazar-Bhatapara in Civil Suit No. 2-A/2010 by which learned Civil Judge Class-2, Baikunthpur has allowed the suit filed by the plaintiff for declaration and injunction.

3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 2-A/2010.

4. Brief facts as reflected from the record are that plaintiff has filed civil suit before the Civil Judge Class -2, Bilaigarh registered as Civil Suit No. 2-A/2010 for declaration of title and injunction mainly contending that the plaintiff is the title holder of the suit property bearing Khasra No. 1950/3 area measuring 0.24 Ha. situated at village Tundari, Revenue Circle and Tahsil Bilaigarh hereinafter referred to as the suit property. The suit property was purchased by the plaintiff from Nirbhay son of Butku valued at Rs. 12,000/- on 14.06.1988. Since then the plaintiff is in peaceful possession of the suit property. The defendant has no right to interfere with the peaceful possession of the plaintiff. For construction of house he has got the demarcation done by the revenue inspector in the presence of villagers on 10.05.2010. On 06.06.2010, the defendant threatened and abused him. He lodged FIR before the police but no action has been taken which has necessitated him to file the civil suit for grant of declaration and possession, restraining the defendant from interfering in the peaceful possession of the suit property by the plaintiff..

5. The defendants have filed their written statement denying the allegation pleading interalia that it is emphatically denied that the plaintiff has purchased the suit land from Nirbhay on 14.06.1988. The suit land belongs to the defendants before 1988 as defendant No.1 Akadasia is the adopted son of Nirbhay and on the suit property he along with his family is living in a constructed house and kitchen garden. It is further contended that adoption deed was executed on 03.10.1960 with the consent of Nirbhay and his wife Bundkunwar. As such, on the basis of that adoption deed he is in possession of the suit property. This fact that defendants are in possession of the suit property for the last 30 years is well within knowledge of the plaintiff. Therefore, the plaintiff does not have right to challenge the right accrued in favor of the defendant on the basis of adverse possession they have become title holder of the suit property. It has been further contended that suit is undervalued, hence, prayed for dismissal of the suit.

6. On the pleadings of the parties, learned trial Court has framed as many as 5 issues.

7. The plaintiff to substantiate his case has examined himself as PW/1, Chhatrapal Sahu as PW/2, Rohan Lal as PW/3, Kartik Ram as PW/4 and exhibited documents Sale deed as Ex.P/1, Map Ex.P/2, Kistbandi Khatoini Ex. P/3, Khasra Panchasala Ex.P/4, Demarcation report by RI Ex.P/5, Police report Ex.P/6, judgment passed in the civil suit Ex.P/7. Defendant No.1 examined himself as DW/1, Ramji Sahu as DW/2, Koduram as DW/3, Johan as DW/4 and exhibited documents Kistbandikhatoni year 1994-95 as Ex.D/1, Khasra Panchsala as Ex. D/2, Kistbandikhatoni as Ex.D/3, Demarcation report dated 10.05.2010 as Ex.D/4.

8. Learned trial Court after appreciating the evidence, material on record has given its finding that plaintiff's father Nirbhay has purchased the suit property through registered sale deed Ex.P/1 and accordingly name of the plaintiff has been recorded which is clear from Ex. P/2 to Ex.P/4. The defendant No. 1 has taken stand in his return stating that he is adopted son of Nirbhay, but he has not submitted any adoption deed dated 03.10.1960 as pleaded in the written statement. No foundation has been led before the Court to demonstrate that the property has been transferred in the

name of defendant which is owned by the Nirbhay and Bundkunwar and also has not produced any document wherein it has been mentioned that the property has been transferred in the name of Nirbhay and Bundkunwar. Accordingly, learned trial Court decided the issues No. 1 and 2 in favour of the plaintiff and held that the plaintiff is the title holder of the suit property and the suit property is in possession of the plaintiff. Learned trial Court while deciding issue No. 4 whether the suit is barred by limitation or not has recorded a finding that the plaintiff has done demarcation on 10.05.2010 with the assistance of revenue inspector thereafter the defendant has misbehaved with the plaintiff and as per Ex.P.3 and P/4 which are of the year 2001-02 it is crystal clear that plaintiff is in possession of the suit property. Accordingly, issue No. 4 has been decided in favour of the plaintiff and decreed the suit in favour of the plaintiff.

9. Against the judgment and decree defendant has preferred an appeal before the District Judge, Balodabazar under Section 96 of the CPC mainly contending that learned trial Court has committed irregularity by recording incorrect finding of fact that Khasra No. 1950/3 area 0.24 Ha. is in possession of the plaintiff whereas from the document produced by the defendant it is quite vivid that land bearing khasra No. 1950/1 wherein well and kitchen garden are situated belongs to defendants. He would further submit that the plaintiff's land bearing khasra No. 1950/1 has been shown as 1950/3 which is separate and would submit that the finding recorded by the learned trial court is perverse and contrary to law. He would further submit that suit is undervalued, still has allowed the suit in favour of the plaintiff which on the basis of the perverse finding deserves to be set aside by the first appellate court. Learned first appellate court vide its judgment and decree dated 20.03.2014 dismissed the appeal. Learned while dismissing the appeal recorded a finding that the plaintiff has title over the suit land which is evident from the oral evidence as well as documentary evidence and the defendant has not produced any document to demonstrate that he was the adopted son of Nirbhay. He has not produced adoption deed dated 03.10.1960 before the learned trial Court therefore, the finding recorded by the learned trial court is justified and does not call for

any interference. Similarly, trial Court has also given finding that the suit has been filed within limitation, therefore, the judgment and decree passed by the trial Court is neither perverse nor contrary to the evidence, accordingly dismissed the appeal. Learned first appellate court after appreciating the evidence material on record recorded a finding that the defendants have not produced any document to demonstrate that the property belong to them and on the contrary the plaintiff has filed sale deed Ex.P/1 to claim title over the suit property which was not reverted by the defendants. Learned trial Court has rightly appreciated the evidence and material on record which does not warrant any interference and accordingly dismissed the appeal.

10. Being aggrieved with the judgment and decree passed by the learned first appellate Court the defendants have preferred this Second Appeal mainly contending that the suit property was recorded in his name since 1990 and for the last 30 years they are in peaceful possession of the land, therefore, the suit is barred by limitation. The suit is undervalued. Further contention of the defendant is that the demarcation has been done in absence of him, therefore, the learned trial Court has committed illegality in giving weightage to the demarcation report, therefore, the finding recorded by the trial Court and affirmed by the learned first appellate Court is perverse and contrary to the evidence. Therefore, substantial question is required to be framed and the appeal may kindly be admitted for hearing.

11. Learned counsel for the defendant would further submit that since the inspection report has not been made a commissioner may be appointed for demarcation of the property since the demarcation has not been done in conformity with the law, therefore, the judgment and decree passed by the learned trial Court affirmed by the learned first appellate Court suffers from perversity and would pray for admission of the appeal. In support of his contention would refer to the judgment of the Hon'ble High Court of Patna in case of Chutahru Bhagat and Others vs. Hialal Sah and Others 1 wherein in para 6 the Hon'ble High Court has held as under :-

"6. For the reasons given above, I would allow this appeal 1 AIR 1950 Pat 306

sot aside the decisions of the Courts below, and send the case back on remand to the learned Munsif foe a fresh decision in accordance with law. The learned Munsif will allow the plaintiffs-respondents an opportunity to indicate the identity of the lands which they are claiming either by stating the boundaries of by filing a map by way of an amendment, of the plaint. If after such amendment, the appellants wish to file any additional written statement, they should be allowed to do so, and the parties will be entitled to adduce additional evidence. The evidence already recorded will be evidence in the case but any additional evidence which the parties may wish to adduce after amendment of the plaint and the filing of the additional written statement, if arty, will be recorded by the learned Munsif. The learned Munsif will then consider the entire evidence in the case afresh in the light of the observations made above, and thereafter decide all the questions at issue between the parties. Costs incurred at the present hearing as also costs incurred before the order of remand will abide the result of the fresh decision."

12. From analysis of the facts of the case, evidence, material on record and considering the judgment referred to by the learned counsel for the defendant it is quite clear that it is not applicable in the present facts of the case as the plaintiff in the suit in clear terms has pleaded and proved that the land bearing khasra No. 1950/3 has been purchased by him through registered sale deed (Ex.P1). The sale deed also provided that part of khasra No. 1950/1 and also annexed the map wherein khasra No. 1950/3 has been indicated. The kistbandi khatoni (annexure P/3) also indicates that the description of the said property as 1950/3 area 0.24 is recorded in the name of the plaintiff. Similarly Khasra Panchasala of the suit property also indicated same thing. The defendant has also filed document Kistbandikhatoni which does not relate to Khasra No. 1950/3. Similarly Ex.D/3 Kistbandikhatoni does not reflect that suit property Khasra No. 1950/3 belongs to defendant. Learned trial Court after appreciating the facts and materials which have been brought before the court has given finding which is neither perverse nor contrary to the record which warrant interference by this Court.

13. From the evidence adduced before the trial Court, it is quite vivid that plaintiff's witness PW/1 in his examination-in-chief has stated that he has purchased the property on 14.09.1988 and since then

he is in possession of the suit property. He has also stated that the revenue inspector has done demarcation of the suit property on 10.05.2010 in presence of villagers of Bilaigarh. He has also stated that Nirbhay and his wife Bundkunwar have not executed any adoption deed. The alleged adoption deed is forged and fabricated and he is not in possession of the property. The witness was cross-examined by the defendant. The witness has stated that it is correct that the sale deed as produced by him description of the land is given as part of Khasra No. 1950/1. He has also admitted that in khasra No. 1950/1 well and house have been constructed after death of Nirbhay and Bundkunwar. The witness stated that defendant was informed by the Revenue Inspector. In the cross-examination he has stated that he produced the document of land bearing Khasra No. 1995/3. The plaintiff's witness No. 5 the Revenue Inspector was examined who stated that he has given notice to the defendant but he has not appeared. At the time of demarcation wife of the defendant and his three daughters were present. He has also stated that in presence of the villagers he has done demarcation. The witness was cross-examined by the defendant and the witness has stated that before the demarcation prior to four days he has given intimation to the defendant and also annexed the copy of the intimation along with report. He has also stated at the time of demarcation he has sent the Kotwar to call the defendant.

14. The defendant in his examination in chief has reiterated the same stand that he has taken in the written statement. In his cross- examination he has stated that he is not aware that on 10.05.2010 demarcation was done in presence of the Revenue Inspector, Sarpanch and the villager of Bilaigarh. He has not produced form B1 for the year 2012-13. He has stated that he has not produced any document wherein his father's name has been written as Nirbhay Singh. The defendants have examined one witness Ramsingh Sahu who has stated in examination-in-chief the defendant is the adopted son of Nirbhay and his wife Bundkunwar. He has not put his signature in the adoption deed, he is not aware of the year of the adoption deed and adoption deed has also not been filed before the court only exhibited

documents Kistbandikhatoni year 1994-95 as Ex.D/1, Khasra Panchsala as Ex. D/2, Kistbandikhatoni as Ex.D/3, Demarcation report dated 10.05.2010 as Ex.D/4 have been filed.

15. From the above stated evidence and material on record learned trial Court has recorded a finding that the suit property was purchased by the plaintiff and he was in possession of the suit property and the defendant has not produced any document with regard to the adoption and also not produced any evidence with regard to demarcation dated 10.05.2010. PW/5 the Revenue Inspector has categorically stated that he has given intimation to the defendant, therefore, it cannot be said that the demarcation has been done in the absence of the defendant.

16. Learned trial Court after appreciating the evidence and material on record has given a finding that plaintiff is the title holder of the suit property. The defendant has not produced any evidence to demonstrate that he is son of Nirbhay. This finding of fact has been affirmed by the learned first appellate court that the plaintiff is the title holder of the suit property and defendant has no right over the suit property, merely filing of certain revenue document does not declare the title of the suit property as held by the Hon'ble Supreme Court in case of Prabhagiya Van Adhikari Awadh Van Prabhagh vs. Arun Kumar Bharadwaj (2021 SC online 868} wherein the Hon'ble Supreme Court has held

26. This Court in a judgment reported as Prahlad Pradhan and Ors. v. Sonu Kumhar and Ors.7 negated argument of ownership based upon entries in the revenue records. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. The Court held 7 (2019) 10 SCC 259 as under:

"5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property."

17. In the present case the plaintiff has categorically produced the

document and demonstrated the fact by recording cogent evidence with regard to the title over the suit property. This is purely finding of the fact which does not warrant any interference by this Court.

18. Upon perusal of entire evidence, no substantial question of law requires to be formulated for hearing of this second appeal. There is concurrent finding of fact with regard to description of the suit property which is a finding of fact which is neither perverse nor contrary to the record. As such also no question of law requires to be determined by this Court. The Hon'ble Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others 2, has held at paragraph 28 as under:-

28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"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 de hors 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 & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para43)."

19. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

20. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42

2 (2020) 4 SCC 659

Rule 1 of CPC.

21.A decree be drawn up accordingly.

22.No order as to costs.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh