OF CHHA’I‘TISGARH AT BILASPUR. s.A. N0 . AQ :2 ? §/ /2004 V APPELEANT : 'B'huneshwar s/o Ronha, age 50 PLAINTIFF years , occupaticn-Agriculture , r/o village Devgadh, P.S. Sc Tehsil sitapur, Distt. Surguja,C.G VERSU RESPONDENTS i Qmnm w/o Ronha, age 65‘years. DEFENDAMS Caste-Uraon, Occupation-Household, r/o village & Past sitapur. Tehsil Sitapur, Distt. surguja,C.G 2. Jagatram s/o Ronha, age 45 years, Caste—Uraon, Occupation-Service, r/o mdrafnagar, Tehsil Wadrafmagar i Distt. Surguja, C.G. 3. Nageshwar s/o Ronha. age 4O years, 1 Caste—Uraon, Occupatibn-Agriculture,§ r/o village Devgarh, P.s. & Tehsil sitapur, Distt. Surguja, C.G. n 4. Chiru s/o Mitku, age 60 years. Lakhan s/o U£i, age 50 years. 6. Devsharan s/o Ufi, age 4e years. 7v Narayan s/o Ufi. age-55 years, 8. Janeshwar s/o Ronha. age 40 years. 9. Nohri d/o Manjhi, age 5O years. 10.Keshwar s/o Quengna, age 4O years. No. 4 to 10 by occupation- Agriculturist, r/o village Devgarh, P.S. 6c Tehsil sitapur, District Slrguja’ C‘Go contd. .2 S f @GH €§t§T @F WWSéW @Lm ”Eiimga. gemzhn Hari’big §1ri Jusiicé Qiirentéra f‘iIEgiia a $atimé i§p§eai $§2§§ é?“ Em Igggéeiaii := ghw§§hm§§ V§ Qe3pondent :- @mnm am; gthgrs e” A § ’Shr’i AKPrEad: iearneci caunsei far éhe appeiiam. J U $ G E §$ E N T €$§é¥as§ an 01 $312535} A “V u , H&ard on admissign. The aweliant ha$ gyefgrred thi$ s§smé appeatagaias: the swaunent }udgment ai‘a a‘ecree paaec‘ by bgm the Qgmis haw; wheraby §he suit ai the awéiiasif fix“ Efgiéma! é§§umt§w has beé§ §i§mé$sea car's éhé gmuna ihat ieama’j bofh ihe (”Jaur‘ta $e1aw mva czjmmiueu iL .1 illz‘agaiit‘y’ m £lacs & as 33w an law by mi consideririg ihe admission of ihe aefendams in the eariier suit hetween the same games with resped ta the $ame Iand and in which the defendants had admitted 14 the canclusWe ggsgggign arm title af the plaintiff. in the §uit which was med by %Qnha and r£spcndem Mas. 2 £1 5 agains: the giaintiff and athsrs fer §artitit3n 9f suit ianti aiaiming mat ii is a iaint pmgeriy‘, regpmaem Na 7 arid iather $f raswndeni iii}. ii} aameiy Chéiigria whc were ciefem‘ama had aE‘mitiea‘ in fhei? jsiiit wriiié-fi §iaieméf1t iiié tifia anei paSSESSion oi ihe piaintifi‘ and the suit wa§ dismissed in the year i98t‘i as abated and sinca then, he was in continueus geeseesien fer mere than 12 years and ae etich he hae eerfeeted his title by adverse. peeeeeeien‘ {Parties hereinafter shall be referred te‘ a‘e per their deeerietiee in the the! Ceut‘i) T" The contenticn of the appeiient/piainth‘i in this appeei is that he. meved en epelieatien under Grater 6 Rule 1? far amendment at the piaint and the same wee diemiesed hy the first Appellate Saw? eide arder gated 08.05.2003 even betere eensidering the eeeeel preferred en merits anci the first Appellate Gem might to have ceeeidereci hie aehlieatien for amentirneni e‘t eleint simultenewsly whiie b) caiwéidering his appeal on meritg anai Ws appiicaficn cauid mi 'bé digmissm‘ $ ihe §ntgrim appellate stage as per binding judgmenm of the High Ccuris and Supreme Courtl Thé casg of thé @iaintiff héfore the trail Court was that iia is cwner cf the 3uii iand and is in possession ai’ the same sinca the iifetime of his fathar who sonstructed the dam over the suit land even befcre settiement. The suit iand was pet‘s-teased by his father frem ene Tampa fer a censideratien of Rs, 12i— and thereafter, a dam was coastructed and after senstructien 0f the dam, it was used tar irrigating their lands es well as the lahds 0f others. The eialntirf is in peacetlil h and exclusive pessessien at” the suit land theugh the names 0f the fiéi‘ena'ants and their ancestnrs are aiso recorded in the revenue papers aieng with the name of father of the plaintiff. The plaintiff is claiming titie by the adverse posseseien on the greund that defendant N91 and father of the plaintiff and defendants Net 2,3,5 and othera filed a civil suit Ne. 1.34-A1198Q in the Gratin ef Sivii dudgei Clase‘l; Ambikaeur fer partition and deciaratien against the piaintifi and ethere which was dismissed as abated on $3.631985. in the aaid aniti the islainti‘fis i.e. l defendants in the nresent ease, suhrniited that “piaintin‘ Ehuneehwar waa claiming exciusive pessessien over the suit iand and same of the defendants of that suit in their joint written statement along with plaintiff Bhuneshwar acknowledged that Bhuneshwar is the ewner and is in possessien ef the suit land and the seit was ultimateiy abated fer net bringing the legal heirs 9f defendants Net 2 and 3 within time. in view ef the pleadings ef the defendants in the abeve suit and further aensidering that in the said suit an erder ef temperary initinetion was gassed in iaveur cf the erasent piaintii’f against the hessessien and the appiicaticn fer appeintment at receiver at the plaintiffs 0f that suit was rejected by the Court, the piainti‘h‘ claims in the suit that the preceeding at the earlier suit estabiishes this tact that he was in passession ever the suit property tram the year 1.986 to W92 for a period of more than i2 year and as sueh has perfeeteci his title by adverse §3G§SE$$IGE However, this contention of the plaintiff has been dealt with eiahorately by hoth the Courts below and there is a concurrent finding by both the Sourts below which is based on documents of Ex.Dli and D!2 being 8—1 Kistbandi Khaton and i3 Khasra Panchshaia for the year 195?=86 to 1581-92 respectiveiy, wherein the nam‘es of the defendants are recorded as sis-owners of the suit property l Ln aior‘xg with {hé piaintifk and ofhérs and the Khasra Panchsaia alsa shows tha fhe defendanvs are in possession of the wit property along with the piainfii‘fs‘ Learngd bath the Gsurts beiow have held that the submissions of the defendante in the eeriier euit that the eiaintiff Bhuneshwar ie claiming exclusive geseession aver ihe suit ei‘egeriy, cahnet be ceneidereci as their aeknewiee‘gement ef title 0f the plaintiff er ta the effeci fha‘i ihe piaihti‘i‘f cehiihueti tr) belie peaceful easseseien aher ciismissal sf the suit it has beeh further helci that the eieadings of other ciefendanis eannot bind those defendants who were no? a party in the earlier enit. {)eneidering the documents; en receri‘i and else censiderieg -fhe proceedings of i‘ne earlier suii and i‘urther coneidering ihe fee: that the piai‘nfi‘if hae not pleaded in this plaim‘: that he wee in ,eossession of ihe suii properiy for mere than 12 yeare adveree te the interest ef the defendants, l am of the epinien the: the claim of the plaintiff that he has periected his titie by edveree poeeeseion hes rightiy’ been neie ey both the Ceene helew es net eetehiiehed. The ether ground en which the plaintiff has challenged the findinge of the first é‘ippellate Geurt is that while eeneidering his applicatien under Drder 8 Rule 1.7 ef the C.P.C.fer amendment ef the elaint, the Aepetlate Ceurt dismissed the eame even befere ceheieerihg the appeei ef the plaintiff en merits, which was net eermiseihfe es per judgments preneunced in the matter ef Effetea ef’ Refeefhes‘f tie. fifti$ehenf emf etheie reported in fmf} ft} §€§ e‘fg wherein it has been heid that the appiication under Order 41 Rule 2? for taking additional documents en reeord should be decided at the time of deciding the enpeal finally because then only it would be poegibie fer the eepeilate Court to arrive te e cenciueion whether the decun’tente were at eii necessary fer the aeitidicetieh Gt” the eezeeei. He aiee pieced hie felienee ih the mattere heifeffee $eheheiei ehe‘ ethefe tie. Keétehef ehe' ethers‘ reeorted in feet hfw ??2. pee; F’ arid §aneeh §§ih§ emf othere Ve. Vaijanti Set ene" where reported in MELJ‘. WE, f62, pare 6 & ?‘where in the caee of Harbiiee Qehcheiai at othere Vs. Kokabei & othere {suprex revision of the appeliant against the order ef reieetieh ef hie eepiisetiehs under 3rde 4‘; Pei: 2? {tx'e} ehd ts : ’Jrde“ E Reie f? cf G35. were ’ unwed ehe the ease was remanded te the first Appellate Ceurt with e directien to eecicie the same at the time ef finally disposing 0f the aepeal. Simiiarl‘y, in the ease of Ramesh Singh Vehaijanti Eai 8i Gthers (supraiu the firet appeiiete Court remanded the caee by eetting aside the judgement without deciding the tf4 v-iwat wpiicatirm una‘er arder 6 Rulé 1? of thé CPLC. far a fresh dec§sian ta m9 tria€ G‘Qurt. Hewever, m ma present case, the leameg “rs! gla appiicatm ; g unu H‘Jumrau igié .mnn. {1 gmui‘zé §ha% ihé ap§é%§ani iS cisiming tine by ad‘Vér$e §e§§e§$iw af fhé ‘ppéliafe giage which charugé§ ihé nature 6f €he wit anci tha same can not be permitted. Learned counsei for the appeliant/piainii?f has chaiiéngw the reiection of his apgiigahm for amendmant en the ground that the 5ame ghguid have bean gagided akmg wizh tha agpeal hnally. Hgwaver, :ha learned caun5e£ ha5 he: mihtai out as te what pragaciice waia ¢aa3eci it} ’ihe pkainhi'f h‘ n13 aghhcatmn ‘i‘Gr am%r1dmen€ was aécidea i a: the l imerim awedate l $Lage. h Tha sahmhsian cf the mainhf‘f that he has herfscied hi3 i§i§é i.4y aa‘éergh 4 passassieh was not acceptahie T’Irshy 0n i‘hé ground ihaf the plaihtih has heithér pleaded in the piaim‘: that he was in continuous open possession of fhe sui‘i gm’psrty to the kngwiedge af the aefendania and adversg to the intgrest of the defendants Qn the gentraiyl the plaintiff has claimed the title ever the suit hrcphriy an the averment ihat ihg land was hhrchaized by his father and ha was in axciusive geesegsian aver the same es cwne . Thue, ihe eoneurrenf i‘ihdinge ei‘ beih ihe Ceui‘te beiew ihei the lend in question ie reeerded in the namee a?” boih the parties anti ‘i'uif‘ner ‘i'ina‘ing that the piaihiiii ”nae failed i0 piead anti prove ihe ingrediehie a?“ adveree poeeession, the iearned Gouris heiow have rightly held that the plaintiff hae failed ta pmve his title ever the seit property and l de net see any infirmity in the abeve ecncerreni K; nadinge a? iacie reserrjed h heth the Calms below, Therefere, there ie m3 (iii am ubstantiel queetion cf law invelvecl tar adjudicatten et this eeeeal ae ereeeeed As e result: the ihstan‘t appeal deserves ta he diemissea‘ and it is accordingly tiismissedl Heweven in the feets and cireumetaneee ef the geeei there ehall be ne erder ae t0 mete. With the eteresaid ebeervetione. M.G,P.Ne.EQ7/Qe etende diepeeed aft i Sd/- Dhirendra Mishrzit 31’ the appellant. Judge r ls: iu. Va. §.. >