s} 1] 2] 3] S.A. N0. 219/2008 Jawahar Yadav S/o Maharaj Yadav, Aged about 35 years Motilal Yadav, S/o Maharaj Yadav, Aged about 33 years Chhotelal Yadav, S/o Maliaraj Yadav, Aged about 29 years AU above R/o VUlage Rampur, Talisfl Baikunfhpur, District Koriya (CG). VERSUS 2] Smt. Shaati Bai Wd/o Shiv Narayaa, R/o Maaendragarh (Aamakherwa), Tahsil Maaendragarh, At present R/o Village Rampur, Tahsil Baikunfhpur, Distnct Koriya (CG). State of Chhattisgarh, through Collector, Koriya (Baikunthpur), District Koriya (CG). •ECOND APPEAL UNDBR SECTION 100 OF CIVIL PROCEDlfRE (SB sHon'ble Mr. T.P.Sharma, J.j Present:- Shri Maaoj Paraajpe, Advocate for the appeUaats. Shri Rakesh Jha, Dy. G.A. for ttie State/respondent No. 2. Respondent No. 1 not noticed. ORAL- JUDGBMENT By fbis second appeal appeUaats have challenged ftie legality and propriety of the judgment & decree dated 27/3/2008 passed by Distnct Judge, Koriya, (Baikunfhpur) CG, ia CivU. Appeal No. 6- A/2006 aiHrming the judgmient and decree of dismissal of suit passed by Civil Judge Class-2, Baikuafhpur in oivU Suit No. 41- A/2002 dated 1/4/2005 where by leanied Civil Judge Class-2, Baikunflipur has disiaissed the suit for declaration of tifle aud possession ffled by the appenaats on the ground fhat suit is barred i ^:..-:,a^ I ^ ^ j£ .// ..<!>• [3^ 4. 5. under Section 170-B of fhe C.G. Latid Revenue Code, 1959 (ia short'the Code'). As per pleadiag of fhe parties preseat respondent No. 1 has taken loaa from the Govt. Bank aad she has given her agricultural land in lease to fhe appeUants. AppeUauts were ia possession ofthe said laud froni 1972-1975 for a consecutive period of3 years fherefore fhey beconie Bhuiuiswaaii in accordaace with Section 190 of the Code but present appeUants who was not ineiuber of Scheduled tribe had ffled aa application for retura of possession before revenue authority ia accordaace wifh Section 170-B of ffae Code, which was disinissed by the Sub Divisional OfB.cer but subsequently, appUcation was allowed ia appeal. Present respondent No. l is not a meinber ofscheduled tribe. AUegation niade in fhe plaiiit has been denied by fhe respondent No. 1 aad has aBeged that she is niember of Scheduled tribe. She has never leased out fhe land to the appeUaats. On fhe basis of avemients issues were framed aud after providing aa opportuiiity of hearfag to the parties learaed Civil Judge Class-2 disniissed tlie civil suit and sanie was affirmed by the appeUate Court. Shri Maaoj Paraajpe, Advocate for fhe appellants and Shri Rakesh Jha, Dy. G.A. for fhe State/respondentNo. 2 are heard. Leamed counsel for the appeUauts vehenientty argued that in the present case both fhe pardes has led evidence relatuig to fhe caste of respondent No. 1. Court is required to consider whefher respoiident No. 1 is a ineuiber of Scheduled tribe aud second substantial question oflaw involved in fhe present case is whether conferral of Bhuniiswami right by application of ]aw would be ,.-r •^S'.gL'.'1- :~i-.?y" ! treated as traasfer of the laad by way of sell or otherwise ia accordaace with Section 165 (6) offhe Code. 6. Judginent and decree iuipugiied and record of the Courts below perused. 7. As per undisputed facts of tbe case fhe laud was trausferred by one Agarsai iu ftie naiae of respondent No.l by registered docuiaent dated 21/8/69 (vide Ex. D-9) in which caste of fhe respondent No. 1 has been mentioned as Gond i.e. niember of Scheduled tribe. Respoadent No. 1 has also filed the caste certificate vide Ex. D-10 in which her caste has shown as Gond ineinber of tribe. Present appeUauts have filed the civU suit in which fhey have aUeged fhat respondent No. l is not a ineiaber of scheduled tribe. They have examiaed one witaess PW4 Deenauath Rajwade but his evidence aad aUeged Ex. P-4 reveals fhat this witaess have failed to prove the fact that whettter present respondent No. 1 was uieniber of any society and her caste was Kunvi iateralia fhe documents filed on behalfofthe respondent No. 1 aad evidence ofwitaesses are siifficient to establish fhe fact that she was ineuiber of Scheduled tribe. Respondent No. 1 has not admitted any lease ta-aasaction wifh fhe appeUaats. Present appeUauts have also not filed aay docuinents to show fhat land were leased out to theni. 8. This is a case of possession of fhe laiid belongiag to laeniber of scheduled tnbe by fhe persons not a nieuiber of scheduled tribe aad who is not notified ttie possession offhelaad to fhe conipetent auftiority. Revenue Court has righUy beld fhat provisions of Section 170 B offhe Code will attract in fhe present case. Bofh fhe .'.\ ** ^, ^i] ^ Courts below have rightly held fhat present suit is hit by provisions of Section 170-B of fhe Code, I do not find aay substaatial question of law for determiuation of tbis second appeal, Consequentty, fhis second appeal is liable to be disiuissed and is hereby disniissed. 9. No order as to costs. Sd/- T.P.Sharma Judge ^