\^r IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR CC.G.) SECOND APPEAL N0. 535' QF 2007 APPELLANT S QEFENDANTS ^ -1. Dinesh Kumar, aged about 29 years Son of Late Shri Ramkisun Sen; ^'2. Pawan Kumar, aged about 24 years Son of Late Shri Ramkisun Sen; .^•&, ,^:s-^^ ^•» rf^B0 ..•••'^\\ ••"• :'^' ••"<y ^ *'' t ^•^ ^;> RESPONDENTS .PLAINTIFF 1, (L- 2. DEFENDANT N0.2 Ranjita, aged about 21 years D/o Late Shri Ramkisun Sen; AII resident of Near Railway Crossing, Pandri, Raipur, Tahsil and District Raipur (C.G.). VERSUS Sohanlal Nai Sen Son of Late Shru Bhuwanlal Naik (Sen), aged about 64 years, Resident of House No. 38/892, Nehrur Nagar, Raipur, Tahsil and District Raipur (C.G.). Smt. Dropdi Bai D/o Late Shri Bhuwanlal Sen, Resident of Dinesh Hair Cutting Saloon, Pandri, Sarai, Near Railway Crossing, Raipur (C.G.). Vishnu Prasad Sahu, Proprietor, Vimal Tailors, Pandri, Near Railway Crossing, Pandri Tarai, Raipur, Tahsil and District Raipur (C.G.). DEFENDANT N0.3 4. ^" Yashwant Singh Thakur, Proprietor, Regal Tailors, Pandri Tarai, Near Railway Crossing, Pandri Tarai, Tahsil and District Raipur (C.G.). SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE.1908 -^ HK3H COURT OF CHHAmSGARH AT KLASPUR §jQal£&BQSh: Hon'bte Shri Justtce Pra^iant Kumar Mishra Second Aopeal No.835 of 2007 Dinesh Kumar and crthere versus Sohanlal Nai Sen and others ORDER Postfor 19-02-2010 Sd//- Prashant Kumar Mishra Judge ^ HIGH COURT OF CHHATTISQARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.S3S of 2007 Appellants Respondents versus Dinesh Kumar and others Sohanlal Nai Sen and others Present: Shri J.N.Nande, counsel for the appeKants. Shri Kshitiz Sharma, counsel forrespondent No.1. Second Appeal under Section 100 ofthe Code of Civil Procedure ORDER (Passed on l^February, 2010) The present secpnd appeal has been preferr^dl by the appellants/defendants challenging the concurrent jydgment and decree passed by the Courts below, whereby the suit for declaration pf title, possession and damages preferred by the plaintJff/respQndent No. 1 herein has been decreed. 2. The plaintiff/respondent No.1 preferred the jnstant suit with regard to suit property bearing Munjcipal House No.16/860 situated at Pandaritarai, Raipur for declaration of title, possession anddamages from the original defendants No.1 to 3. It was the cast pfthe plm^^ that in the Munjcipal and revenue records, hisname hast^en entered as owner ofthe suit property, which he had puF^h9sedJ)y regjstered sale-deed executed by one Brijbhushanlal Agrawal on 20-11-1963 (Ex.P-1). In the year 1970, he shifted his barber shop to Nehru Nagar, '•;%.. '"^t ''•^^. -2- Raipur, therefore, the suit property was handed pver to his father original defendant No.1 Bhuvanlal for his resjdence wjth specifi^ condition that he wilj carry on his barber shpp from the syjt premjses but shall not let out any part of the property to any other person and whenever the plaintiff needs the suit premises, he shalj vacgte the same. After about 8-10 years, defendant No.1 brought hjs grand son (his daughter's son), who started assisting defendant No.1 in the barber shop and at the sametime defendant Np.1 jllegaHylet oyt the front two rooms to defendant No.2 Vimal Tailors and defendant No.3 Regal Tailors respectively, who are carrying on their business from the said rooms m an illegal manner. When thjs was objected to by the plaintiff, defendant No.1 started altercation compelling the plaintiff to serve a legal notice on 26-4-1993 terminating his licence and the right to occupy the suit premises. He demanded vacant possession from the defendants on 25-6-1993 and since thereafter the ppssession of the defendants over the suit property is in the natureof an encroacher. 3. The original defendants No.1 to 3, in their joint written statement, denied the plaint averments and pleadecl that the syit prpperty was purchased jnthe name ofthe plaintiff by defendant No,1, who is the father ofthe plaintiff, therefore, defendant No.1 jsthe owner and it is he who has raised construction on the plot purchased in the name of the plaintiff. It was their further statement that the plaintiff was shifted to Nehru Nagar, which was also purchased by defendant No.1 and defendant No.1 himself shjfted to the present suit premises, whlch belongs to defendant No.1 and after his death to his widow Smt. •^ Jankibai. Plajntiffs plea of licence was specjfically denied and it was .^;^.u-S.lt^^-, • ;^ ^. i£.^s^i I %ty .^ 1 stated that defendant No.1 has enQaged hjs dayghter's son te assist him in the barber shop and he had every authority to let out the two front rooms of the suit premises to defendants No.2 ^rA3^ ^ENInS pendency ofthe suit, the written statement was amendect tp plead that Smt. Jankibaj. the widow ofthe originat defendant No.1 Bhuvantal had executed a Will dated 18-1-2002 in favour of her daughter Smt. Nirmalabai, grand sons Dinesh Kumar, Pawan Kumar and grand daughter Ku. Ranjjta and they are the owners ofthe syit property after the death of Smt. Jankibai. Thus, the newly added defendgnts daimed ownership ofthe suit property on the basis oftheWJI(gx€|cyt<B<J|>ytate Smt. Jankibai, the wife ofthe original defendant No.1 Bhuvanlal. 4. On the basjs of the oral and documentary evidence led by the parties, the learned tnal Cpurt, by jts judgment and decrfe dated 13-8- 2007 in Civil Suit No.57-A/20Q5, decreed the suit. The trial Court concluded that the plaintiff isthe owoer of the suit property by virtueof the registeredsale-deed dated 20-11-1963 (Ex.P-1) and the sanction of building plan and map Ex.P"3 and Ex.P-4. The trial Court found that the plea of defendant No.1 that it was he who had purchased the suit property and the plaintiff had got his name reeorded in the ^yjt property in a fraudulent manner has not been proved. This fjndjng has been recorded by the trial Court after a detailed djscussion in paragraphs 7 to 12 of its judgment. Plea of adverse possession was ateo negatived by the trial Court while answering issue Np.3 and the is^ye regarding entitlement of the plaintiff to recover possession framed as issue No.2 was dealt with by the trial Court in paragraphs 14 to 17 of its jydgment. In the said part of the judgment, the trial Court has held that the -^- plaintifTs case thal defendant No.1 was a licensee js provedon the basis of statements of P.W.-1 Sohanlal (the plaloti^ and P.W.-3 Ramkishan Sen. Issues with regard to y.iilMiti'pB |urKlj?<§^Mril9ry jurisdiction of the tnal Coyrt were|iteff decic^jn|iy(?ur^ 5. The newly addecl defendants Dunesh ^ Ranjita |ind Smt. Nirmala^ pr^fen^ fin^^l^al un<^ SicAion 9^ of the Code of Cwil Procedure. The appellate Court has also dism(|sed the appeal by fts jydgment and decree.dated 17-11-2007 in CMI Appeal No.4-^/2007, which is under challen9e^injhi^j|i?pocll®fi|a|. The firstappel|attJ^<^rt|iiasc<^ct<n^^^^^w^ and findings pn aM l^iijei arxl has^^l^ document^ry evidence on rec^ to prpye that t(t|^|n!tW of the suit property, Thejipp<|ll^e Coy^ on ir^tBin<|i^ ofthe evidence availabte on record, has condu^e^th^tJtheplea pfthe defendants that the land was in factpurchased by the ongjnal defendant No.1 after collectjng amount by selling hjs wife^^^ and the p|eu|itjff has gpt his name recprded^ ^ a fraudutent manner has not been proyed, Thus, the fln<!(n^ riga^g ownershjp of the pl^inUff is. a pyre findir^ pf^ c^^ii^ntl^ ^eached by both the Courts below. The plalntiffs G|se ||]i(|t jti^o^ defendant No.1 was a licensee and was npt ^rmittid to N out th^ sutt property to any other person has also been found toi|it Ri^id t?y tl^ appellate Coyrt. This finding is also a pure finding pf fact There js nothing on record to suggest that the original defendante Np.2 and 3 came into possesston wfth the consent ofthe plaintiffprth|it^ywere ^ in fact the tenants of the plaintiff. In fact, ft was not the castpf either ^^^^s^- •9- the plaintiff or the defendants that the said ctefendants No.? ancl 3 were settled in ppssession by the plaintiff. In view pfthis, tht |3g:^sessjqn of original defendants No.2 and 3 is illegal and the Cpurte belpw hiaye n<?t committed any illegality in recprding the s9id finding. 6. In State Bank of India and othws vs. S.NLGo^/. (2008) 8 SCC 92, the Hon'ble Supreme Court has enunciated as to what is a substantial questipn pf law. Paragraph 1 3 p( the report is extracted hereinbelow: "13. Second appeals wquld lie in cases whi^ Uy^h^ substantialquestiqnsMi^- Iheyw^^u^^ to "question oflaw" does not refer to the ^a^es^nyolved in the case, nor intend^d to refer wily to questipns of law of general importance, but refersfi imp^ questipnoffawqnthedeasiqnin^^^^^^ "Substantial quesffpns pf law" rmans not only substanffal quesffonsof law ofgeneral impc^nce^butQlspsubstai'tiiat ciues^fipflawar^gi^^^ In the context of Secffon 100 CPC, any questipn of law which affects the iinal dedsion in a case is a substantlal question of law as between the parties. A que^pn of law which arises inddentally or collaterally, hawng np beanng on the final outcome, wi{l npt be a sub^antial queslson of law. Where there is a clear and settled enuncis^on on aquestion of iaw, by this Court or by the High Cpurt cpncemed, ft cannot be said that the case Involves a substantiallcsuestton of law. It Is sakl that a substantialciuestton of law a^ses when a quesffon of law, whksh is npt finally seWed by this Court (or bytheHighCourt (wncemedspfarasl^e^ concemed), arises for cqnsideration m the case. But this statement has to be under^ood m the corredt fiw^w^ye. ^V7?ere there is a clear enunciation oflaw and the lower court has folkfwed or rightly appliedsuch clear enuf'Hsiationoflaw^ J\ (Q^ ^./'^y ^^-—•^" ob^ously the case wittnot becon^leiwla^giwng^ijs^toa substantial questipn oflaw, even ifthe qu^swf^l^vmay be one ofgeneralimpprtance.QnffieQtherjjQ^^^^V^ a clear enunciation oflawbythis Court(Qr^yjt)^f11^X!owt concemed), but the lower coi^ Ap^ '^l^^^ w misinterprelted or mSsaRf^wl the sair^^^^^ ^ Qpplication of the jaw as ^edai^^^^^^ Court (6r the High Cpurt conqenw<ff w<^^ h (Sfferent ctedsww, ^ appea/ MWI^JnvoA^ a jg^^ quesffon oflawas betweenffieparffes. iyenwhefe yiere iss an enundation of law by this Court (pr th^ Higtf Cfftfft concemed) and the ^ame has be^^^i^^JQ'^k^er court, if the appellant isable to p^rsuad^^H^lh^urt that the enunciated legal position needs reff^n^tf^iQn, alteration, modification orclarificQfion pr thatth^reis a wefS to resolve an apparent cqn^ betwe^ t/^\^ can be sakl that a substantlal ques^n ^^ conskSeraffon. There cannot, ^/efo/®,|>e f s|rai|Sft^ef definition as to when a substan^cp.iesSsonqftawai^esMa csse. Be that as it may." 7. tn view of the above gyiding pmcip^ a^ tp^^i^ |) fybs^ questionoflaw,thjsCoMrtfinds^ ^^^ have failed to demonstrate any subs|9ntial qyestion of law for determination in this appeal. 8. In the result, the pres^nt ,!§^cpndapp^9l ynder S^tion 1 QQ of the Code of Civil Procedure fails and is her^ djsnr|i!^ed'attlieadmissipn stage. _ -——- Sd//- Prashant Kumar Mishra Judge Gopal