m M: iF' \^^ ^ IN THE HIGH COURT OF CHHATTISGARH AT SingleBeneh SECOND APPEAL N0. f7^" OF2006 APPELLANT DEFENDANT < /( Anand Kumar S/o Yakub, *' Caste ISai, aged about 57 years, R/oVillage Tikarsani, Tahsil- Pendra Road, District Bilaspur C.G. V ERS U S Stmon S/o Kodu,Caste Isai, aged about 80 years, Occupation Agriculturist, R/o Village Tikarsani, Tahsil Pendra Road, District Bilaspur C.G. 1-"" MEMO OF SECQND APPEAL UNDERSECTION 100 OF hTHE CODE OF CIVIL PROCEDURE. 1908 RESPONDENT ^LAINTIFF 1 AG.^ ^? A E € ./ ,^ ^^' <"'" \'\> >'^ -' >' 4^^. :l\\o t^\"v' ^ 1, Akbal Ss^» S/©&at@ siaxsn ^Q^:, aged ©bout71 srears, R/o »ostKotasi, • Distriot. Bilasp-ar (Ca0»). 2, Asas Kath S/o I.ate MB»'aXo^t« aged aisoat 64 years* PcOo $?®adraKoady J'^'kipur^ Eistri&t Mlaspu-r (C..G<,)« 3« Ktt. SwarKalat.a B/o StS-fce ^iE^a Kodu, eged ^toat 5.3 years^ P.^0^ ^e^dr^ a^a^ Matriet Bilasoixr*. 4<. Sparablata N/b Kelma^ aged ^ho^t 51 yeara^ Sfc^>-G^ttral flospital^ AmaMiier^a^ i?a0< MaQeadragarh, BdLstrict Bsiteayipur <C.G.) So ^ia&le? Kumar . S^ .Ziate Sim^B KoAi, aged about years, K/o ABiakherwa, ^»0». aar.essdragarfe, Bistriat. Bai1suathp%r <c<a»)« CT// ^) :'^^^:1 l|^f^^^^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinate Bench: Hon'ble Shrs Justice Prashanl Kumar lyiishra Second ADpeai No.193 ^ 2006 Appellant Defendant Respondents PIajntiffs Versys Anand Kumar Slmon (died) throi^h LRs Akhal Nath andothere. i Shrt RaHesh PancSey, cemnseS for the appellarrt. Shri S. Rajaswith Shri Hemant Gupta, counsel fcrtlie respondente. ApDeaI Under Section 100 oithe Codie of Civll Proeedure ORA'L bRDE-R .•1 (16.02.2010) M.C.P. No. 1151^2^)6 hasbeen moved by the respondents for modiflcation ot' the order dtd. 03-(^"2006. Shrl S. Raja^, counsel for the cloes not press this .applicatlon. .- • . ^ . '. . . .: • . 1 • , Accordingly, M.C.P. No. 1151^2CX^ Is dismlssed as not pressed. Heard fearned counsel for the appellant on actmission. PteintiffSimon fiteda syit for digctaration ^title, mandatory injunction and poss^ssion with respect to su'rt iands admeasuring 0.16 dismil foearing Khasra No. 25^2 atvlltageTtkarsanl,Tahsil ~ P8ndraroad,District- Bilaspur. The suit was dismfesed by th©trial Court however, the first app@llate Coyrt t^is set aslde the jydsment and deCTee passed by the trlal Coyrt and ^has thus decreed the suit in favour of the tes^ndlents (now LRs of deceased Simon). .'.:;•.'; .'• . . • . !,' ; , '.. ; .,..- , , ., _ /,/ .' ^',', ..,;'•.' 2. PSairrtPs case, In short/fethat he te the ownerof land, Sch^ the plaint map in which 0.16 dlismil;of tend has been shown wth the boundaries A,B,G,D. On thi®part of the land the ^efendant has made encroachme?iit and a wall and one Kachcha construction (Khapraposh Makan). The plaintlff submitted an applicatton for demarcation before the TahsiSdar and the land was on 04-08- .../-• ^- ^ 1994 when It was found that the defendant has encroached 0.11 dismil of land belonging to the ptaintiff. 3. The defendant, in his wr'rtten stetement came up w'rth a plea that he has not encroached any part of the land beloYsging to the plalntiff and that they are in possession ot the part of the su'rt land by rafeing a wai! for Sast 40 years and tand belongs to them, AccordinQ to the defendant he is not aware of the demarcation as no notice was to him. The defen^ant raised the plea of non-jolnder of parties, improper valyatlon of sult atid that ttie suit Is barred by limiltatlon. 4, ln the course of trial, the trial Court appointment of Commissioner for tocal inspection. The Commissioner a report vide Ex. P A-1. The learned trial Court dismissed the suit after recording the fincilng that though the plaintiff Is owner of No. 25/2 area 1.14 acre yet the fact of encroachment has not been proved. The trial Court also found that the su'rt suffereci from non-joinder of necessary parties, it is barred by llmltationi and that proper Courts have not been pald. 5. On appeal by the ptemtiff the first appellate Court has set aslde the jydgment and of the trlal Court and the suit foy the jydgment and innipugned herem. 6. The first appellate Court has deaft with the Commissioner report Ex. P.1-A and has came to conclusion that the parties have not raisect any objection regarding the admissibly of the report. On the basis of report of the Commissioner v/hich has been proved by its aufrior R.S. Yadav. The appellate Court has found that the ptea of encroachment 1% proved. As far as the defendants objection regarding non-joinder of necessary partles are concerned, the appeltate Court ha^ found that tie syit Is witt to the lands bearing Khasra No. 25jf2 and not for any part of the land of Khasra No. 25/1 or 25/3, therefore, the defenciants plea that on accoynt of non-joinder of his brother Vtjay as a party, the suit must fail, is not acceptable. ! j K!t.T^±-.ii^:—. ..,^^^.s^^..i^^ -5- L. <^ 7, Plea regarding improper valuation of the suit and non-payment of Court also been with by the first Court "rt has been speclfically recorded that the suit pertainlng to agricuStural has been' valued at 20 tlnnes of revenue In accordance with Sectlons 3 & 4 of the Su'rt Vaiuation Act, 1887 and Court fees has been paid as per Section 7(v) for possession and Sedion 7(iv) for injunction. Accordlng to ttie Court the sult has-been valyed m the'suit valyatio-n M.P. Courtfees 8. Regarding the piea of limitattQn the first appellate Court has found that the cau.se-of for filing the sult of the In the 1994 when the Even if, the to the Rnowiedge of wal! by the defenciant Is accepted and 'rt is found that in 1985-86 the plalntlff became aware of construction of wall by the defendant then also the present suH for declaration, possession mandatory injynction 1.2 years Is withln iimitatlon as per Artide 65 of the Indian Llmltation Act, 1963. .9, ThisCoyrtonexammation.ofentirema^^^ by the trial Court and first appeliate Court Is satisfied that the findlng v/ith regard to encroachment of !and recorded by the first appQllate Court is r»ot perverse. The first appeltate Court has not cbmmitted any error of jurisdiction or has not recorded any such ftnciing which is contrary to record or that whlte recording such findmg the Coyrt not any material piece of evidence. There is no iSlegality committed by the fsrst appellate Court by accepting the Commfesioner's report. PIea recording non- joinder of the necessary parties, Court'fees, has deaSt w'rth by the first appellate Court in right persj^ctive on the of pteadings made by the parties and they are neither perverse nor 10. (n .the case of State of Indla and otftei^ vs. SMGoval. (200_8) 8 SCG 92, the Hon'ye Supreme Court has enunclated as to what is a T "' :";1:1?%^W / .^ -^ 41 substantial questlon of law. Paragraph 13 of the report is extracted herein below: "13. Second appeafs woyfci fe in cases which imoive subsianW gyeysNons of tew. Tte woFd "sisbsianifaf" pfQfix&d te "gve^on of few" ctoe^ nof to thesiakes m fhe nor intencted to refer onfy to guesfcns of tew of genera/ imporfanc^, but te or of fhe i^^/ on the dec^tonmi^ H3 "S^b^BHimf of taw" mean^ not o^y of tew of ("mportance, but ateo sufostenfe/ quesUtW ofisw arisify In a as between itm parfes. ^ the context of Secfron -f00 CPC, any que^flan of iaw whfch the In a ^ B sub3iBnilaf of faw a'3 fhe A of taw which on (he ^a^ oytcome, w^ not foe a s^&stenffa/ oftew, them te a ctear and on a of ?aw, foy fhfe Coyrt or &y tte H@h It 6e ths cass fnvc^ves a qu&siton of few. ff is that a ^ub-sianiiBl af faw ^ of isw, wNch is noi ^nalty sQWed by f»sCourt for fey # Hgh Cwrt so fer as fite Sfate te con^med}, arises for considBraffon m the ca.se. Syf fhfe .^tatement.has fo'&e m ihe per^pec^ve. Wmre there fe e of tew the /em^er coyrf has w righ^y 'sirch of tew, o&vfoc^fy ffre wffl f^t foe a^ N-se to a siibsi&nisssf questlon of law, even if the 'questhn of iaw may b& one of gsf^fal ;'mporfance. Orr the ofher hand, tf tter®is a c^r enunciaiton of fowby (hte Coyrf for &y lf?e Mgh Coyrf birt the fawer coyrf or or fhs same, and correct ap^lcafof? of ^ie tew as or envndated by (ftf-s Coc^rf for'the Hyh have /ed fo B dllffereni ctecfston, the appeaf woutd mvoive a stfbst&ntt&f guestfon of f&w as between fhe £v®nwhere (here 'fs an eniincia^on of faw by Ws Coyrf for the High C^yrf concerr^) am^ (he ha^ by ihe if fhe appelisnt fs abfe fo persuacte fh®Hfgh Coyrf <f?af Ihe enunciaiecf posi^^? ne@^s m^n.sfeferafon, Biterafton, modsficatten QT cfanfk;aifsm or ihai fhere is a te &n ,^' appamni confHct b&^veen iwo vwwpomis, it c&n be fhat a of iaw for csnnof ^^Bfor^, foe a -sfr^f^ackef definltfon as to wh©n a si/bst&nW offsw 'm a Se thaf as ^ may." 11. Apptylng the above laid by the Sy.p.reme Court to the fects of this case, this Court Is safefied that the judgment and decree passsd by the first Court fe based on appredatlon of on settieci jn the facts of the 12. In. vtew of above, this Court not any of law involved for ^etertnination in thls 13. Jn the result, the instant Section 100 of Clvil Procedyre Code m Sd//- Prashant Kumar Mishra Judge ^ ^< y y.