"3. ^age--f BEF01?E THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL No. c-i /2007 APPELLANT PLAINTIFF t.-' ttB.- ,<o'7.--- .^•s^ '?.^~&4 •" . 11 \-,\\ 's''"^'' \ h.J'v"°° ^^^w'" Govind Prasad Pandey, S/o Late Shri Rainkhilawan Pandey, aged 60 years, Retired Employee and cultivation, R/o village- Pandatarai, Post Pandatarai, Tahsil- Pandariya, District Kabirdham (C.G.) Present Address- Chatapara, Dixit Bariwala Road, on the bank of river, Bilaspur, District Bilaspur (C.G.) VERSUS 1. Smt. Sindurita Shah wife of Shri Sanjeeva Thakur, aged about 26 years, occupation - Shiksha Karmi, R/o at Pandariya (Rajmahal) Post and Tahsil- Pandariya, District Kabirdham (Kawardha) C.G. 2. State of Chhattisgarh , through - Collector, Kabirdhara (Kawardha) (Chhattisgarh) MEMORANDUM OF SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CFVIL PROCEDURE. Sinate Bench: Hon'bie Shri Justice Prashant Kumar Mishra RESPONDENTS Defendants Smt. Sindurita Shah and another. Shri Vishwanath Goswami, counsel for the appellant Miss Sharmila Singhai, counset for respondent Shri Vinod Tekam, P.L. forthe State/respondent o.2. PRQCEDURE RAL.O RD E Learned counsei for the appellant is heard on srimission. (2) The Courts below have dismissed the plaintifrs suit for declaration of t'rtte and permanent injunction on the suit lands. According to the plaintiff the subject land was orally gifted to his iorefather by Late Raja Raghuraj Singh sometime in the year 1880 at Ihe time of appointing his forefather as Raj Purohit. The plaintiff stated \ that his forefather and thereafter he himsetf continues possession cf the suit land. The present suit was fited when sometimes in the month il, 2(X)1 the oriaina) defendants No. 1 & 2 tried to interfere En hls (3) The respondents denied the allegations and stated that the piaintiff was never in possession of the su'rt land and that it was nev'er fifted to the forefather of the piaintift. Ptea regarding nori-joinder of a!l the LRs of Late Lat Brigendra Shah and the subsequent purchaser pr. Abu Bakar Hingora was ateo taken. it was further stated that the ^yss^..., r-<2_^- possesston of subject land was delivered to the defendants by ofder of S.D.0. on 3rd June, 1^ under Section 170-B of Chhattisgarh Land Revenue Code, 1^9. According to the defendants in view of Chhattisgarh Land Revenue Code, 1959 su'rt for declaration against the defendants No.1 & 2 who are tribate is not maintainabte. (4) The triat Court as well as the appellate Court has dismissed the suit after finding that the plaintiff has failed to proof the oral gift as also his possesston through his forefather from the year 1880. (5) The Courts below have not acted illegaily or perversely while appreciating the oral evidence submitted by the parties. The findings fact recmrded by the Courts below did not suffer from any infirmity or (6) Tlre appellant has moved an application under Order 41 Rute 27 of C.P.C. to place Xerox copy of the record to proof his possession. In the appiteation under Orcter 41 Rute 27 the pet'rtioner has not explained as to how he was prevented from fil'sng these documents before the trial Court and the first appellate Court. The application for obtainjni certified copy it^ff appears to have been moved on 06-09-2007 (Annexure A/1), on 16-02-2009 (Annexure A^2) and on -5-03- (Annexure A/3) etc. Thus the -03-200C ff never made any effort to collect the documents during pendency of the suit whfeh %?as-liled on 27^)4-2001. Even otherwise there can be no documentary evidence of oral gift. Further, the documents do not record the possessson of the riairstiff in continuity. The application under Order 41 Ruie 27 of C.P.C. cannot be allowed at this stage of the second appeal. ^f^".-^^ ^s.^"%, ^?'"""^».1 R &-,'S^S& 1 3 WsSy~^ 1 i s S S ^ .^ ;^-i^' fS- -^ (7) The Hon'bte Supreme Court in the case ot State Bank oflndia and others Vs. S.N.iSoyal, (2008) 8 SCC 92 has iaid down the principte as to what s substentiat question of law. Apptying the said principte m the facts and cireumstances of the present case tttis Court does not find any substanfel question of iaw arising in the appeai for determination. As a Section 100 of C.P.C. fails and is hereby result the present petitton dismissed atthe admissfon stage. Sd/- Prashant Kumar Mishra Judge ^I^j to. J1