“ § $53 ,... 6£wd .'....”I J v \\Q)" IN THE HIGH COURT OF JUDICATURE AT CHHATTISGARH \‘Xi\?w FIRST APPEAL N0. ggvg OF 2005 2. State of Chhattishgarh, . ”through the Collector, Raipur. ox APPEAL UNDER smTmN 96 OF TEE CODE OF CIVIL PROCEDURE, wag ’ l ‘ vj} i& APPELLANT: fs'ardar Puran Singh Garcha, fLB/efendant No.1] son of Sardar Parwar Singh, resident of Tatibandh, G.E. Road, Raipur. VS RESPONDENTS: Parsadi Satnami, son of {Plaintiff} Shri Pandit Satnami, adult, resident of Raipur. @ Gurjee Singh, son o Sardar t f Pra Singh Garcha, aged abo 57 yers. un ut 2. Harinder Singh, son of Sardar Puran Singh Garcha, aged about 53 years. Both residen f Civil Lines, t o Raipur [CG] u HIGH COHRT OF QHHATT$GARH AT BILASPUR w Bench‘ Hon’ i S ri ’ r i h F.A. N9, 245 I 2005 Shn B P Shanna counsel for the appeilants Shn Anant Baum and shri S S Rajput counsel for respondent Na 1 Miss Sangeeta Mishra Panei Lawyer for the Statelrwpondent No 2 APPEAL UNDER SECTION 96 OF THE CQDE OF CIVIL PROCEDURE JUD‘EIMENT . I Kg .10.2010) This first appeal under Section 96 of C.P.C. has been preferred by the defendant, who is suffering a decree for handing over the possession of the suit land as also for mesne proht @ 5,000I— per year to the‘ plaintifffreepondent No.1. d (2) The plaintiff preferred the suit with respect to iand bearing Khasra No. » “ 6H and 6i2 area 0.80 acre situated at viliage Tatibandh, Raipur. It was stated r in the piaint that the piaintiff is the owner of the suit land, however the defendant has iilegaily encroached and inciuded the suit tend in his agricuiturai farm which came to his knowiedge when the demarcation was - carried on in January, 1993. The defendant No.1 did not satisfactoriiy responded to the legai notice, instead, the defendant No.1 created undue pressure on the piaintiff and got executed an agreement to sale for Rs.60,000I-, whereas the market value of the suit Iand is about 7,0090%. " According to the ptaintiff he suffering damages to the tune of Rs.20,000f- per , year. _ APPELLANTS Sardar Puran Smgh Garcha (dead) Guneet Stngh and another Ver$us RESPONDENTS Parsadi Satnami and another (3) The case of the defendant Na.1lappellant before the tn'a! Coud was that he was not noticed at the time of demarcation, therefore the report is not binding on him. He atso denied to have received the legat notTce. He stated that the plaintift is not entitted to any retief. v (4) The hie! Court framed tive issues for determination. The ptaintiff has proved the demarcation'report EXP“, the map EXPIZ, the Kistbandi Khatauni Ex.Pl3. the maintenance Khasra EXPM and the tegat notice EXP/Si The ptaintiff examined himsetf as PWI1, Jagga Ram as PWIZ. On the other hand the appeltantfdefendant No.1 examined himseif as DWH. (5) The triat Court decreed the suit‘and directed delivery of possession of the suit tand to the plaintiff. it was atso directed that the piaintiff is entitied to mesne proht of Rs.5,000f- per year. (6) Shri BP. Shanna, learned counsel for the appeitant would submit that the demarcation report is not binding on the appellant and that in any case, as per plaintift’s own case. the land is in possession of Garoha Agricultural Farm against whom the suit has not been tiled and the defendant No.1 has no concemed with the said agricuitural farm. Shri Shanna would further submit that the suit suffers from non-compliance of the provision contained in Grder 30 Rule 10 of C.P.C. (7) Contesting the appellant’s argument, Shri Sachin Singh Raiput, teamed counsel appearing for respondent No.1 would submit that the suit did not suffer from any defect whatsoever and that the appellant is unnecessarily raising a technical plea on which no issue was framed by the trial Court. . Drawing attention of the Court to the provisions contained in Section 99 of C.P.C. Shri Rajput would further submit that the decree passed by the trial Court cannot be set-aside on the technicat plea raised by the appellant. . \\ (8) The trial Court while discussing material issue No. 1 & 2 in the suit has / ireferred to the demarcation report Ex.PI1 and other revenue documents. lt / has been observed that the appeilant has not produced any documentary or oral evidence to demolish the iegal effect flowing from the evidence iaid by the piaintiff and thus it is proved that the plaintiff is the owner of the suit land v and the defendant has encroached upon and is in possession of the suit land. The appellant has faited to point out any defect or error in the finding recorded by the trial Court on issue No.1 and 2. This Court has also gone through the oral testimony of the plaintiff's witness and the documen$ EXP/1 to Pl5. The evidence laid by the plaintiff are of clinching nature and in fact the defendant has not med any documents to claim that the suit iand belongs to him or that he owns the property in any other manner recognized in iaw. $3 This Court shall now consider the appellants argument regarding violation of the provision contained in Order 3O Rule 10 of C.P.C. and the effect thereof in the impugned decree in View of the Section 99 of C.P.C. Rule 10 of Order 30 read5 as under :- “{10. Suit against person carrying on business in name other than his own. — Any person carrying on business in a name or styfe other than his own name, or a Hindu undiviwd family carrying on business under any name, may be sued in such name or style as if it were a mm name, and, in so fer as the natuie of such case permits, ell ruies under this Order shail apply accordinglyJ" (10) (11) The titie of Order 30 of C.P.C, reads thus :~ “SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN". The title of Order 30 wouid suggest that the rules contained in this order would apply when the firms or persons filing a suit or have been sued when they cany business in names other than their own. ln the present case / ,r/r/“"\\ the suit is not invohiing any dispute relating to the commercial or business t/ transaction between the plaintiff and the defendant or for that matter between the maintiif and Garcha Agricukturai Farm. Merety because it has been mentioned in the demarcation repon that land is in posseasion of Garcha Agricukurai Farm, it cannot be said that tha said agricuiturai farm is a firm or a business entity. The appeiiant/defendant has not brought anything on record to prove that the said Garcha Agricutturai Farrn is a business or commerciai entity which carries on commercial operation in the name of Garcha Agricuiturai Farm and is a firm registered under any subsisting taw. The appeiiantldefendant No.1, in his statement, has admitted that he has a farm. house in Tatibandh, however, in the next breathe he says that the farm house is managed by his sons. (12) In view of the above discussion, this Court is unabie to accept the argument of the learned counsel for the appellant that since the suit has not been filed against Garcha Agriculturai Farm, the same is not maintainable or that the land is in possession of Garcha Agriculbual Farm and not in possession of the appellantfdefendant No.1. Even otherwise Ruie 1Q of Order 30 is an enabling provision and the suit cannot fail only because the suit has not been brought against Garcha Agricultural Farm. (1 3) Since this Court has already examined and found that the suit did not suffer from any defect in addressing or suing the defendant, and the hndings recorded by the trial Court on ati materials issues has found itlegal possession of the appellant/defendant and loss sustained by the plaintiff on account of the said iilegal possession of the defendant No.1, this Court would hoid that the instant appeal has no substance. (1 4) Consequentty, the appeal fails and is hereby dismissed. (15) There shail be no order as to cosw A decree be drawn—up J i i Prashant kumar Mishra i Judge accordingly. Sci/- \\..