APPELLANTS : / Yb 0W? @ IN THE HIGH COURT OF CHHATTISGARH AT — BILASPUR §mgie 3mm Valued at RS.320.00 Court fee affixed RS.35.00 Chandmal, son of late Shri Bhawrimal, JanjgiH'QeadHIarough Hindu (Jain), resident of village Kera, tehsi ,1. Anil Kumar Jain, aged 41 years, son 0f late Shri Chandmal Jain, 2. Smt. Ratna Devi, aged 76 years, wife of [late Shli Chandmal Jain, Both residents of Village Naila, tehsil Janjgir, district Janjgir—Champa (C.G.) (Plaintiffs/Appellants) VERSUS /RESPONDENTS: kl) Smt. Kamla Bai, aged 72 years, wife of late Shri Hajarimal, I (9,, Rajendra Kumar, aged 52 years, son of late Shri Hajarirnal, Both Hindu (Jain), residents of Kamla Niwas, Man Talaiya, behind Nagar Nigam Dispensary, Jabalpur, tehsil & district Jabalpur (M.P.) @y (Narendra Kumar, aged 30 years, son of late Shri Hajarimal, Hindu Jain, S.D.E. (civil), resident of Irrigation colony, Gondiya, village Fireman Manendragarh, district Sarguja (Chhattisgarh), at present address— Opposite Dr. Deshpandey, Gopal Nagar, Nagpur (Maharashtra) (4) Dilip Kumar, aged 48 years, son of late / Shri Hajarimal, Hindu (Jain), Fireman, Manendragarh, at present address — Superinten'ding Engineer, A.C.C.L., at/P.O. Katkona, district Koriya (C.G.). (S) State of Chhattisgarh, through the / Collector, Janjgir-Champa, district Janjgir—Champa (C.S.). (Defendants/Respondents) SECOND APPEAL UNDER SECTIONTo'O OE ”I ,M THE CODE OF CIVIL PROCEDURE § l @ HIGH COURT OF CHHATTISGARH BILASPUR Second Appeal No.107/2005 Chandmal (dead) 'l’hr-ough L.Rs. Anil Kumar Jain and anofher , Vs. ) Sm‘t. Kamlobai and ofher's Post for 25.8.2005 Sdl- Sunn Kumar Sinha Judged; a HIGH COURT OF CHHATHSGARH BILASPUR Second Aggeal No.107/2005 Chandmal (dead) fhrough L.Rs. Anil Kumar Jain and anofher 'Vs. J Sm‘h Kamla ’Bai and ofhers é 3x3“ Shri Somna'rh Verma, counsel for fhe uppellanfs. ORDER ( 25.8.2005) Sunil Kumar Sinha J - This appeal arises ouf of 'Hne judgmen'r and decree da-red ,t 30.11.2004 passed in First Apbeal No.22-A/2004 by The 3rd Addl. Disfr'icf Judge (F.T.C), Janjgir, which was filed against The judgmen'r and decree da'fed 19.9.2002 passed in civil suif No.51-A/2002 by The Firsf Civil Judge, Class-II, Janjgir. (2) Briefly smfed fads are Thai 'rhe original plain‘riff namely Chandmal filed a civil suif for declarafion of his fi'rle on 'I'he sui1' lands alongwi'l'h a declara'rion fha‘i fhe purchaser of The land namely la're Hajarimal was only a benaml’dar. If was fur'l'her claimed fha‘l‘ fhe _ possession of‘fhe: sui'r properfy may also be delivered 'ro 'rhe plaihfiff. a2- @ This suH' was filed on 16.3.1982. Lafer on by way of amendmen'r da‘red 27.9.1988 an addifiana! plea of perfec‘rion of fifle by adverse possession was also added by 'rhe plain‘riff and fhe relief was amended +0 fhe exfenf 'l'ha'r 'rhe plain'riff be declared as fhe owner of The suif proper'ry on me basis of perfection of his fi‘He by way of adverse possession. The original plain‘l'iff died during fhe pendency of 'rhe sui‘r and was subsfifu'red byhis‘ legal represenfa‘rives on 13.12.2001. The plain‘r allegafions are Tha‘l' lhe suitlands were purchased by The plainfiff ou‘l of his own earnings and la'l’e Hajarimal was only a benamidar. Hajarimal was fhe uncle of fhe original plainfiff, Therefore, 'rhe saledeed was execu‘led on his name, bu‘r he never confribu‘l'ed any amounf of considera‘l'ion for purchase of fhe aforesaid properfy. The suit properfy was purchased fhrough a registered sale deed d'i'.12.1.1968 and 1'he plainfiff alone remained in acfual physical possession of 'rhe sui1' properfy. Therefore, he became The absolufe owner of fhe suif properfy by perfecfing his fi-rle by way of adverse possession. (3) The defendan'rs,who are 'rhe successors of lafe Hajarimallfiled 1'heir wriffen sfafemen‘i' denying The conTenTions of The plainTiffs. IT was pleaded by Them ThaT The suiT lands were The self acquired properTy of laTe Hajarimal who remained in iTs possession as a purchaser. He was noT a benam/‘dar of The plainTiff Chandmal. Since ‘\I The plain-riff was nof a1" all in possession of fhe sui'r properfy, therefore, ques'rion of perfecfion of ‘I'i‘He by adverse possession does nof arise. (4) The learned frial Cour'r framed various issues in This case and affer recording 'rhe evidence of 'rhe plain'i'iffs' side, as +he defendan‘rs became ex-parie affer filing of 'l'he wriffen sfafemeni', dismissed fhe suif of The plain'riffs holding Tha'r 'lhe plain‘l’iff could no'l' prove fha‘r he was fhe real purchaser of fhe sui‘r proper'ry and la're Hajarimal was only a benam/‘dar. If was also held 'l'ha‘l fhe plain'riff was nei'l’her in ac'lual physical possession of ihe sui'r properfies nor he has perfecfed his fifle by way of adverse possession. (5) Agains'r 1'he aforesaid judgmen'l' and decree passed by fhe frial Courf, 'rhe legal represen‘l'a‘tives of The original plain'fiff filed fhe firsf appeal before The lower appella‘re Cour'l’ and 'l’he lower appellai'e cour‘l' also dismissed fheir appeal confirming The judgmenT and’decree passed By The Trial CourT. IT is againsT The aforesaid judgmenT and decree, passed by The appellaTe courT, The plainTiffs have filed This second appeal under secTion 100 of The Code of Civil Procedure. (5) Shri §omnaTh Verma, learned counsel for The appellanTs submiTs ThaT The Trial courT as well as The lower appellaTe courT erred in law in holding ThaT The plainTiff could noT esTablish ThaT he was real w4, (i? purchaser of ‘H‘Ie suif proper'l'y and Iafe Hajarimal was only a benamia’ar. He also submi‘rs ‘rha‘r ‘rhe courfs below fur’fher erred in law in holding 'H‘Ia'r 'l'he plaintiff was not in ac‘rual possession of fhe sui'r properfy and he has nof perfected his fifle by way of adverse possession. (6) I have hear-d learned counsel for The pariy’‘ a'l lengi'h and have also perused ‘rhe reco‘rds o'f fhe 'l'wo cour'l's below. (7) The Apex Courf has held in fhe maffer of Valliamma/ (D) by LRs. -vs- 5Mmaniam and ofher's (2004) 7 SCC' 233 'rha'r 1'here is a presumpfion in law fhaf 'ihe person who purchases 'rhe proper-w is fhe owner of 'rhe same. This presumpfion can be displaced by successfully pleading and proving Tha‘i' ‘l'he documen'i was faken benaml' in fhe name of ano‘iher person for some reason, and 'i'he persons whose name appears in 1'he documen'l’ is nof fhe real owner, buf only a benarmi The Apex Cour-f held ‘i'ha'i' heavy burden lies on fhe person who pleads 'I‘ha'i fhe recorded owner is a banami-holder. The Apex Cour'i' has fur'l'her held fha‘r ouf of The six indicia To defer-mine the quesi‘ion whe'iher a particular sale is benami or not, as mentioned in Jaydaya/ i Paddar (Deceased) fhrough LRs. and marker -vs- Msf. Bibi Hazr'a and ‘ofher's (1974) 1 562‘ 3, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether The sale sfanding in fhe name of one person, is in reali‘ry for 'H'Ie benefif of ano‘rher'. Wha'r are 'l'he six circumsfances sfa'red in fhe case of Juydayai Poddar (supra) are menfioned hereinbelow:- dealing wiTh The properTy afTer The sale. If we apply These principles in The presenT case and TesT The validiTy of The judgmentpassed by The Two courTs below, iT would appear ThaT The plainTiffs could noT prove The facT ThaT The original plainTiff was The real owner of The suiT properTies and laTe Chandmal was The benam/‘a’ar of The same. I do noT find any meriT in The argumenTs advanced by learned cou‘nsel for The appellanT and The same cannoT be accepTed. f (8) The second poinT abouT The adverse possession is also noT esTablished by The plainTiffs' case There is no ioTa of evidence in This (i) the source from which fhe purchase came: ' (ii) the nafure and possession of +he affer- fhe purchase; (iii) mafive, if any, for giving 'rhe fransacfion benami colour; (iv) fhe posifion of The parfies and The rela‘rionship, if any, between The claiman‘r and fhe alleged benamidar; (v) The cusfody of 'rhe fifle deeds affer 1'he sale and ’ (vi) ‘rhe conduc'l’ of The parTies concerned in @@ case 'H'm'r The plain'riff ever remained in fhe acfual physicd possession of fhe suif properfies +0 'rhe exclusion of 1'he fi‘l'le of 'rhe defendan'rs so as 'l'o give righ'f in favour of 'l'he piainiiff To raise a plea of perfection of 1'i1'le by way of adverse possession. The Trial courf as well as fhe lower appellafe cou‘rf have righfly held fha‘r 'l'he original plainfiff or his legal represen'ra'rives were never in possession of fhe sui'r properfies and fhe plain‘riffs could no+ esfablish fheir claim on fhe basis of docfrine of adverse possession. I do not find any reason fo inferfere wi'rh The judgmen'r and finding of 'rhe +wo cour-l's below on ‘rhis poin'r also. Learned counsel for fhe plaintiffs could no'r poin'r ouf any perversify in fhe concurrenf findings recorded by The fwo cour'rs below in rela'rion f0 These +wo poin‘rs, eifher in relation to plea of benamior in relation to adverse possession. (9) The second appeal can only be entertained on a substantial question(s) of law. As to which would constitute momma n— substantial question of law, it has been observed by the Apex Court in case of Sanfosh Hazari -Vs— Puruslmffam Tiumri Deceased b L.Rs. (2001) 3 .56? 179 that “a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “ substantial " a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the g w¥_, case, if answered eifher way, insofar as fhe righfs of +he parfies before if are concerned. To be a quesfion of law “involving in fhe case" 'rhere mus‘i be firs? a foundafion for if laid in fhe pleadings and fhe ques'lion should emerge from 1'he susfainable findings of facf arrived a‘l' by courf of facfs and i1' mus? be necessary 'ro decide fha‘l quesw‘ion of law for a jusf and proper decision of fhe case. An en'l'irely new poinf raised for fl'ie first 1’ime before +he High Cour'l' is not a quesfion involved in fhe case unless if goes fo the roof of fhe ma‘Her. If will, fherefore, depend on 1he facfs and circumsfances of each case whefher a quesfion of law is a subsfanfial one and involved in 1'he case, or no‘l‘: fhe paramounf overall considerafion being 'rhe need for sfriking a judicious balance be‘fween The indispensable obligafion ‘ro do jusfice a1' all sfages and impelling necessi'l'y of avoiding prolonga‘l’ion in fhe life of any lis." \kd (10) As above, a perusal of secfion 100 C.P.C. makes if clear fha'l' The scope and exercise of jurisdic‘l‘ion by ‘l’he High Cour‘l' in 'l'he second appeal under section 100 is limH-ed to fhe subsfan'rial questions of law framed a‘l 'rhe fime of admission of 'rhe appeal or addifional substanfial quesfions of low framed a? fhe lal'er sfage offer recording reasons for 1'he same. This makes if clear fhaf fhe exisfence of « subsfanfial quesfions of law is sine qua non for fhe exercise of jurisdicfion under fhe amended provisions of secfion 100 C.P.C. (Please w§5w see (2004) Val. V 566' 762 - Thiagarajan and afhers -vs— 5hri Venugapa/a swarm! B. Kai] and ofher'g) (11) I do no‘f find any reason To in1'er'fere in The concurren‘l' findings recorded by fhe fwo cour'rs below. This appeal does no? involve any subs'ranfiai quesfion of iaw and 1'he same canno+ be en'fer'rained. If is dismissed a'r fine admission sfage ifseif. No cosfs‘ Sdl- Sunil Kumar Sinha Judge? WW i i i Li , Rad