<^. HIOH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. 166/2004 ^ APPELLANTS PLAINTIFFS RESPONDENTS DBFENDANTS VERSUS Mahaveer and others, Basant ahd others. 1-.. Post for pronouncement ofiudsment on03 /09/2010. Sd/- TP. Sharma Judge ; I: •/' : .(^•'.•.-'"•' ,»";.':. st. /1 ; ',(••'. •'-'. i^- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPBAL N0. 166/2004 APPELLANTS PLAiNTIFFS t. 2., 3. RESPQNDENTS DEFBNDANTS Versus 1. 2. 3. 4. 5. Mahaveer son of Shri Prasad, aged about 48 years, occupation agriculfure Laxman son of Prasad, aged about 50 years, occup.-agriculturist Kalmul son of Shri Prasad, aged about 45years, Qccuragricultare All are resident of village Baad, P.S. and Tah. Raajpur, Distt. Surguja (Chhattisgarh) ; Basant son of Gharku Gond, aged about 30 years, caste-Gorid - ^ Ram son of Charku, aged about 25 years, caste=-Gond, Laxman son of Charku, aged about 22 years, caste-Gond, : Chatur Gond, son of Budhiya, aged about 45 years, caste-Gond* All are resident of yillage Baada, P.H.N. 11, R.N.M, and Tah. Rajpur, Distf. Surguja (Chhattisgarh) The State of Chhattisgarh, through: District Collector, Distt, Surguja (C.G.) SECOND APPEAL UNDER SECTION 100 OP THE CODE OF CIVIL y PROCEDEURE. 1908. (SB :Hon>ble Mr. T.!>.Sharma, J.) ..)' Present: Mr. G.S. Agrawal, Sr. Advocate with Mr. U.R. Koshley, Advocate for the appellants. Norie for the respondents No. 1 to 4. JUDGMENT s^Passed on 03 /09/2010) 1. By this second appeal under Section 100 of the Civil Procedure Cpde, 1908 appellants have challenged the illegality and prbpriely of the judgment and decree dated 21/2/04 passed by Second Additional Districf Judge, Ambikapur District SurguJa in Civil, ; ,1 Appeal No. 6-A/03 dismissing the suit of declaration and permanent injunction judgment and decree dated 29/4/03 passed by Second Civil Judge Class -II, Ambikapur iri Civil Suit No, 103-A/01. Preseht ,^^r^&,. ^^-^:"^: ^^^^ ^. •'®?ases»--;" '^^'.^ ^ ^ ^- ^s A .^.' 1 •/' '•',("'•'. '':';". second appeal has been admitted for consideration on the following subsfantial questions pf law:- (((i) Whether the findings in relation to fraud^^^^ are peruerse on the face ofevidence on record? (ii) Whether the valuable evidence gwen by P.W.2 . / namely Nakul has been ignored by the Cburts below and a wrong ftnding has been recorded m this regard?" , . ; . : .. • :,', ,".. ,...:/- •'..•.••''.•'; •;.' :- .^ .. As per pleadirigs of the parties, Lakhni wlfe of Prasad purchased suit pr&perty showri in SeheduIe-B total area 21.52 Acres from the mother Smt. Suni vide sale deed dated 28/6/74. Lands were mutafed in the name of Lakhni, brother of deeeased Charku i.e. respQndent No. 4 Chatur Gond a clever and mischievous person of the village was present at fhe time of execiition of sale deed dated 28/6/74 ^nd by his mischievous acf and taking the benefit of illiteracy of Smt. Simi, he succeeded in adding the name of Basant as a co-purchaser in the sale deed. Originally it was written as purchaser (^I) but thereafter same was added as a purchasers t.e. (^HFTUT) which is clear from the sale deed vlde Ex. P-3. Respondeht Basanf along with his father and uncle,succeeded in recording thgir ,^ name in PanchsHala JChasra thereafter tried to dispossessed the Lakhni. CriminaA case was regisfered and finally Lakhni filed suit fbr declaration oftitle and permanent injunction against the alleged co- purchaser Basant, his father Charku and his uncle Chatur Gond. During the pendency pf civil suit Lakhni died, name of her children were impleaded as a plaintiffs and after death ofCharkuthenamebf his two sons were impleaded. By filing written statement, :..-^-"-.' '•y^l^'% • '^^K'A ^•^v ^^^^•- .^- ^ i.T •r' ' .f:';'.. • ''. 7. respondents have denied the adverse allegations that inother of Lakhni died when Lakhni was minor. She was mamtained by her mafernal grandmother arid grandfather. Lakhni is not a daughter of Smt. Suni. Respondent NQ, 1 and Lakhni had jointlypurcUasedsuit property and came into possession, plaint was parted on the basis of mutual arrangement, Basant was in separate possession of the land on the basis of aforesaid pleadings. On the aforesaid pleadings pf the parfies, issues were framed ahd/ ' affcer providing an opportunity of hearing to the parties leamed Secorid Civil Judge Class-II, Ambikapur has dismissed the suit and same was affirmed in the appeal vide judgment and decree impiigned. Mr. G.S. Agrawal, Sr. Advbcate with Mr. U.R. Kpshley, Advocate fbr the appellants ar& heard. JudgmeniTand decree 6f both Aie Courts below ahd recprd of both fheCburts below perused. ' Learned counsel for the appellants vehemently argued that in the present case findmg of both the Courts below relating to fraud are pen^erse and bpth the Coyrts below has not considered the only attesting witness Nadail of the alleged sale deed. Ex. P-3, which is sufficient fDr proying the fact that property was purchased was only Lakhrir and not by Basant but mischiefly riame of Basant was a.dded. '..'••."'••.:-'. ;.. '• '.' .- f ' • '"• :; •., • .'.. ':;.:.'•..•'.'';•;,. ^ ::/..•,;• In the present case, Ex. P-3 alleged sale deed reveals that property has been pyrchased by Lakhhi and Basant on recQrd of right (fchtdei^) relating to the year 1996-97 vide Ex. P-1, Ex. P-1 reveals that the only name of Lakhni in the suit property. Panchshala -••••^' 3..;'^a^^j; ^I^T-''.:.// '^•^^^^ {b^ v^ '^ r,. • KMsra vide Ex. P-2 in tbe year 1996-97 shows that all the land exceptKhasraNo. 278/2 has beenshown in possession ofLakhni as owner. The only Khcism No. 278/2 reveals fhat it was owned and possessed by Lakhni and Basant. Wrvz Pustika vide Ex, P-4 reveals' that entire landwas hold by only Lakhni and not by Basant. 8. In order to prove the case ofplaintiffs, plaintiffs had examingd PW1 Kalmul, attesting witness PW2 Nakul, PW3 Subas and PW4 Manaveer but defendants have npt examined any with^ As per oral and documentary evidence, specially the eyidence of PW2 Nakul, only Lakhni had purehased the property and not Charku 85 Cbatur Gond, fhey have not paid any amount for purchasing ofland for his son, only Lakhni had paid amount to Smt. Suni. Reveriue record Ex. P-1, Ex. P-2 and Ex. P-4 reveals that property was owned and possessed by Lakhni and not by Basant 9. [ As per evidsnce of PW2 Nakul, Lakhni has purchased the property and Charky and Basaiit have not paid any amount although the sale deed reveals the name of both fhe purchasers. Presenf respondehts haye not proved the fact that how Basant has purchased the lahd along with Lakhni, what was his relation with Lakhni, how much , amountwas paid byBasaiit andCharku to Smt. Siini for pyrchase 6f fhe lajid. The bcular and documen^ evidence shows that all the lands were purchased and owned by Lakhni and not by Basant The eyidence of Nakul sufRcient to prove the fact that larid was purchased only by Lakhni and appellants has been able to prove the fraud played by Chatur Gond. ConsequenUy, substantial questions of law No. 1 & 2 formulated for decision of this second appeal is decided as positive. On the basis of iindings ypori the substantial' !? f'-'. •"''•. "; :t .^•'.."•'> ^c'1".::.'^ x:;'^^;^;..n; :^^-.;-.;/:. :-v ' -1- • . '--' . ; "':.'^'-^.^"'-:. ^ .w questions oflaw No. 1 & 2, second appeal is allowed. Judgment and decree of bptb the Courts below arfc hereby set-aside. Preserit, • , ^' appellants are declared owner of suit property shown m Schedule-B of the plainf, Schedule-B shall be treated as part of the decree. Permanent injunGtiQn against the respondents is granted. lO.Partiesshallbeartheirowncost. 11. Advocate fee as per ^chedirie. 12, Decree be drawn up accprdingly. ; . -r^ ~^-—— Sd/- T.P. Sharma Judge ^ •" • „ .^".'^ •;. iT ./'. ..r1'''.. '"'*.