)Qmeaa: COURT OF JUDICATURE AT BKLASPUR (C.G. ) IN THE HIGH econd Appeal No. of 2004. S A AFPELLANT / 9LAIN1=IEF RESPONDENTS DEFENDANTS K , J; V Vb) , 2K ——.——c— Bhondal aged 45 years’ s/o Nammu Dhobi. resident of Kothari, Kachora Tan. & Distt. Korba (C.G.). VersuS sukhani Bai, aged 55 years W/o late Hans Ram. sit Bai. aged 37 years ' D/o late Hans Ram. Ramlal, aged 35 years S/o late Hans Ram. Shyamlal, aged 32 years S/o late Hans Ram. Sita Ram, aged 27 yeafs S/o late Hans Ram. V Rajendra , aged 19 years S/o late Hans Ram. A11 residents af village Kothari_: p.s. Urga, Tah. & Distt. Korba (COGO) Mst. Amol Kunwar, aged about 50 years Widow of late Anand Ram Dhobi. Laxmi Bai , ageé 2‘2 lyears D/o Anand Ram Dhobi. Ganga Bai. aged 21 years D/o Anand Ram Dhcbi. All residents: of village Kathari, Tah. 8c Distt. Korba (C.G.). éanga Ram. aged 19 years S/o Anand Ram Dhobi, R/o Kothari, Tah. 5; Distt. Korba (C.G.). .,...contd£.... ,3 HIGH COURT OF QQDIC&%§ AT BIQS?QB. CHgATTISQARH Seco A e1 0.85 2004 Bhonda! Versus Sukhani Bai and o’rhers £05T F0? jUDéMENT ON I87“ AUéUST. 2004 , Sdl- ‘ , _L.C. BHABOO Judge 17.3.2004 ’ L HIGH COURT OF JUDICATURE AT BILASPUR CHHATTI$GAR §ecand Aggeal No.85 of 2004 Bhonda! Versus Sukhani Bai and o‘l'hers Presen+: - Shri 5.V. Pur'ohif, Advocafe: For The appeilan‘r ’JugeMgNT (Delivered on I V“ August, 2004) L‘C= BHAwO. Q, The plainfiff/appellanf has preferred fhis second appeal being aggrieved by 1'he oppeila'l'e judgmenf and decree passed by +he learned 3rd Aadifionai District Judge (F.T.C.) Korba, in Civil Appeal No.19—A/2002 affirrning +he judgment and decree of 2nd Civil Judge, C‘ass-I, Korba dafed 28-2-2001 passed in civil Sui? No.82—A/2006 (Bhondal V. Hans Ram and ofhers) whereby fhe learned ’rrial Couri’ dismissed The sui'l' of ‘l'he plain'iiff far permanen‘r injuncfion. (2) The second appeal as per 'rhe provisions of Sec‘rion 100' of ‘l'he Code of Civil Procedure shall lie ‘ro fhis Cour‘r from everv decree passed in appeal by any Cour? subordina‘re 'lo ihis Cour? only when ‘rhis Cour? is satisfied fha'i' The case involves a subsfani'ial quesi'ion of law. (3) I have heard learned counsel for The appellant l (4) Whe'rher ,fhe appellanf has been able fo raise any substantial. qpesi’ion of law for consideration of fhis Courf in this appeal? The plaim‘iff’s case before The Trial CourT was ThaT faTher of The plainTiff namely Nammu filed a suiT before The Trial CourT. During The pendency of‘ThaT suiT Nammu died, Therefore, The presenT appellanT was subsTiTuTed as plainTiff in place of his faTher. The case of The plainTiff was ThaT The plainTiff and defendanT Nos. l To 5 are The joinT owners of The agriculTural land of village KoThari and Kachora, which are adjoining. The agriculTural lands of boTh The villages are s @ F)» ancesfml of The plain'l’iff and 'l'he defendan'rs. The further case of fhe piainfiff was ‘Hm'? defendant No.1 and fhe husband of defendanf No.2, 25 year's back par'fi‘rioned fhe Iund wifh fhe plainfiff and fhe agricul‘furai land 0f village Kachom, which is menfioned in para-4 of fhe plainf, was given to fhe piain‘l'iff for which fhe plain'riff had no objection. The defendan'f No.1 and husband of defendan'r No.2 namely, Anandram fook fhe land of village Koi'har'i, Thereby They par‘ri‘rioned fheir agricul‘rur'al land, bu? so far Their join‘r names are sfill appearing in fhe Revenue Records and since 'rhen They l are cul‘l’ivafing ‘l'he lands which fall in fheir share. However, husband of a defendan'r No.2 Anandram based on fake and forged documen‘l’s showed fhaf The land bearing Khasra Nos.454, 458/1, and 460 admeasuring 2.88 acres was purchased by him from one Dukhirarn and Thereby he wanTed To grab ThaT land whereas, ThaT land is of The join-T ownership of plainTiff and The defendanfs. DefendanT Nos. 1 and 2, now, wanT To Take possession of ThaT land. They wanTed To open The sfone quarry in ThaT land and Thereby They wanT To dispossess The plainTiff, whereas, The plainTiff is in peaceful possession since parTiTion. Therefore, based on The parTiTion, The plainTiff be declared as The owner of land of village Kachora and The respondenTs/defendanTs be res-Trained from Taking possession of ThaT land based on forged and fake documenTs. (5) The defendanTs filed Their reTurn in which They denied relaTionship wiTh The plainTiff. They also denied ThaT The plainTiff is co- sharer in Their agriculTural land of village Kachora and KoThari. They furTher said ThaT The land bearing Khasra Nos. 454, 458/1 and 460 adr‘nea‘suring 2.88 acres was purchased by laTe Anandram from Dukhiram by a regisTered sale deed in The year 1955. Based on The pleadings of The parTies The Trial CourT “framed as, many as 11 issues, The parTies were allowed T3 adduce Their evidence and afTer hearing counsel for The parTies, The Trial CourT recorded The following findings:- (i5 ThaT land bearing Khasra Nos. 454, 458/1 and 460 admeasuring 2.88 acres was purchased by Anandram from s @9 Dukhimm and The remaining land bearing Khasr'u Nos.451, 194, 151,458/2 and 461/1 of village Kachora is fhe join? propel-1y of plainfiff and fhe defendani's. The 'frial Cour-f further held tha‘i ‘l'he plaintiff has failed to prove fha'r he is in possession of any of The lmds: fherefore, relief of declara'rion and injuncfion cannot be granfed, as The plainfiff is no1’ in possession and he has nof soughf any relief for possession. (6) Being aggrieved by The above judgmenf and decree of 'rhe Trial CourT The plainTiff/appellanT preferred firsT appeal which came To be decided by The 3rd AddiTional DisTric'l’ Judge (F‘T.C.) Korba. The judgmenT and decree of The Trial CourT was affirmed by The 1“ AppellaTe CourT vide impugned judgmenT and decree. Therefore, There is concurrenT finding of Trial CourTand The 1" AppellaTe CourT. (7) During The course of The argumenTs learned counsel for The plainTiff/appellanT was noT able To raise any subsTanTial quesTion of law. A perusal of The memo of appeal shows ThaT in The memo of appeai also almosT same poinTs have been raised which were decided by The Trial CourT and affirmed by The 15* AppellaTe CourT. Counsel for The appellanT/plainTiff has noT been able To poinT ouT any legal flaw in These judgmenTs. He was noT able To poinT ouT how The findings of The Trial CourT and 15* AppellaTe CourT are perverse or which poinT of law arises for decision of This CourT. As has been held by The Hon'ble Apex CourT in The maTTer of Ram Kumar Agarwal v, Thawar Dass (dead) reporTed in AIR 1999 SC 3248 ThaT “ The High CourT, in second appeal is noT jusTified in seTTing aside a mixed quesTion of law and facT" and also in The maTTer of KamaTaka Board of Wakf v. Anjuman-E— Ismail Madris—un—Niswan reporTed in AIR 1999 $6 3067 The Apex CourT held ThaT “The High CourT, should noT inTerfere wiTh The concurrenT finding of facT in a rouTine and casual manner by subs‘h'TuTing iTs subjecTive saTisfacTion in place of lower courTs." ' In The maTTer of Dnyanoba Bhaurao Shemade V. MaroTi Bhauraon Marnor reporTed in 1999 (2) SCC 471 The e Hon'ble Apex Court held fha‘l’ “The ques'rion whe'fher a finding of fact is agains? The weight of evidence does no? projecf a quesfion of law, much less a subsfan‘ria! quesfion of law." The Consfifu‘rion Bench of The Supreme Courf in 'rhe mo'rfer of Chunniial V. Mehfa and Sons L‘rd Versus Century Spg. And Manufacfuring Co. Lfd. repor‘ed in 1962 Supp (3) SCR 549 heid as under: "The proper fesf for determining whe'rher a quesfion of iaw raised in The case is subsfanfial would, in our opinion, b whefher if is of general public mporfance or whefher i'r direcfly and subsfan‘rially affecfs fhe righfs of The par'ries and if so whe‘rher if is ei'rher and open question in fhe sense fhaf if is no? finally seffled by This Cour‘i' or by 'ihe Privy Council or by fhe Federal ourf or is no‘ free from difficul‘ry or calls for discussion of al'rerna'rive views. If fhe quesfion is seffled by The highesT cour‘T or The general inciple To be applied in deTermining The quesTion are well seTTled and There is a there quesTion of applying Those principles or ThaT The plea raised is palably absurd The quesTion would noT be ‘a subTanTial ‘ quesTion of lawf' Even There are no allegaTions ThaT eiTher The Trial CourT or 15" ”AppellaTe CourT has misread The evidence or documenT or has given any ‘ e finding conTrary To The evidence or document (8) BoTh The CourTs have reached The conclusion ThaT as far as purchase of land admeasuring 2.88 acres by laTe Anandram, husband of defendanT No.2, in The year 1955 Through a regisTered sale deed is concerned, ThaT sTands proved and The appellanT was noT able To adduce any evidence showing ThaT The sale deed was forged or fake. As far as remaining land is concerned, The Trial CourT and 15* AppellaTe CourT have recorded The finding ThaT The plainTiff and defendanTs are joinT owners of ThaT properTy. IT Was furTher held ThaT The plainTiff is noT in possession of ThaT land also. BoTh The CourTs have referred The evidence of The plainTiff. In para-24 of his evidence he has specifically admiTTed ThaT The defendanTs are in possession of The land. Even some dispuTe arose beTween The parTies regarding The dispuTed land, proceeding under SecTion 145 of The Cr.P.C. was iniTiaTed before The S.D.O., Revenue in which The 5.D.O. also gave finding r e i C r prs p s BQWQ 'rhuf fhe defendan'rs are in possessian of The dispufed properfy, againsf which fhe plaintiff moved criminal revision before fhe Sessions Cour? and The Sessions Courf also dismissed The revision by affirming The order of The 5.D.O.. Accordingly, The Trial CourT and 15* Appella're CourT reached The conclusion ThaT since The plainTiff is noT in possession of The dispuTed land, Therefore, plainTiff’s suiT for permanenT injuncTion cannoT be mainTained, as he is noT in possession of The land and no relief for possession has been soughT. (9) As far as The quesTion of parTiTion beTween The plainTiff and respondenTs 1 d 2 TwenTy-five years back from The day of filing of The suiT, as per The finding of The Trial CourT as well as 15+ AppellaTe CourT The plainTiff has noT been able To prove This facT ThaT when The parTiTion of agriculTural land beTween him and respondenTs 1 & 2 was effecTed, even The plainTiff was noT able To prove The monTh, year and daTe of The parTiTion and no 7 docuriienTary evidence was produced in supporT of The parTiTion. Therefore, boTh The CourTs based on The evidence adduced by The parTies reached The conclusion ThaT The plainTiff failed To prove The facT ThaT any parTiTion was effecTed beTween him and respondenTs 1 (Si 2 and ThaT The i agriculTural land ‘of village Kachora parTiculars of which are given in para-4 of The plainT came inTo his share I have perused The eVIdence and This finding of boTh The CourTs is noT erroneous in any way (10) On careful consideraTion of The evidence adduced by The parTies and judgmenT of The Trial CourT, I am of The considered opinion ThaT The Trial CourT and 15+ AppellaTe CourT have noT commiTTed any illegaliTy or "irregulariTy in arriving aT The finding ' (11) In The resulT The appellanT has noT been able To raise any subsTanTial quesTion of law in The maTTer The appeal is liable To be dismissed aT The admission sTage iTself and iT is accordingly dismissed. SM :.L.c. BHApOO Jud ge i yaks-2004 ’sx: /