IN THE HIGH COURT OF JUDICATURE AT BILASPUR SECOND APPEAL N0. _4_^ OF 2005 APPELLANT: (Defendant) , Babulal Satnami, Son of Shri Hiradas Satnami, aged about 65 years, resident of Gram Riko MXndir, Hasaud, Tehsil & District Raipur VERSUS RESPONDENTS: (/Plaintiffs) ^ 1. Smt. Trilpka Bai, widow of Late ^ Punauram, aged about 60 years. 2. Udairam, son Punauram, . aged years. 3, Lakhanlal, Punauram, years. All residents of Village Chhatina Mandir, Hasaud, Tehsild & District Raipur (C.G.) SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908 \^<^w ^' .-•^ of Late about 45 son of Late aged about 32 ^ ^ y. i?^ HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 45/2005 Appellant BN?ulal Satnami [. r J' Versus Respondent Smt. Triloka Bai & ors. Shri B.P.Sharma leamed Counsel for the appeltant. JUDGMENt (Passed on^r-2-2005> The instant second appeal has been fitod by the appellant/defendant against th®impugned judgment and decree dated 30.11.2004 passed t^ 8th Additional District Judge, ^iipur in Firet Civtt appeal No. 7-A/2004 by whteh the appeal preforred by the respondente/plaintfffo was altowed ancl^ie sutt was decreed by reversing the finding ofthe trial Court reconled on 7.12.99 by 7thChril Judg®Class II in Chril SuitNo. 103W1998 who had partialty decreed the suit of the plaintiffe and dlsmissed theirprayer for issuance of perpetual InjuncUen. The appellant by this appeal has challenged th® jmpugned jydgment and decree passed by the First Appellate Court on the ground that during the pendency of the^ appeal the appellan^defendant had preferred a cross objection under order 41 Rute 22 ef the C.P.C. along wtth an application for conck»nation ef ctelay in fiUng the cross objection. The leamed First Appellato Court by the impiugned judgment has decreed :^i%iii:iiiiiiii^iii^iiii^ssi^i^ — 2— the sutt of the plaintiffeand granted att the reliefe claimed by ttiem. It also granted the relief for prohibitory Injunction ctented by the trial Court and white passing the impugned judgment and decree it altogether ignored the cross objection of the appellant/defendant herein and there is no oKter either on his applteatfon fw cwwtonation of delay in filnig ttie eross otijection nor the cross ob|ection itself has been consjdered whlch is apparent from a bare reading of the impugned judgment. Apart ftom the above grounds the appellant has ateo assaited the findlng cf the firet appellate Court on the ground that the impugned judgment is based on documente whteh are Inadmissibte In evktonce and whteh has not been taken into consideration by the trial Court as they were not duly pioved as per the provisions of taw. However, the teamed First Appellate Court relied upon ttie above-mentioned documerrts <wi the ground that the same can be used by the plaintifls and consldered forcellatwal purpose. The brief facte of the case are ttiat the plaintWs fited a ch41 suit on the pleadlngs thal they ar®ttie reeorded owners of the suit land whtch was purehased by them through two registered sale deeds of Ex P-5 and P-6 in the name of their tather Punau on 8.5.59 who came into poss^sion of the suit property from 1he date of purchase and after ttie deatti <rf Punau they became absolute ovmer <rf the same. In the year 1995 the deyendant started interfering with the possession of th®sutt property and thwefore the suit for dispossesston was flted by the ptainfflfe. They atso fited an application for temporary injunction against th®defendaiit and atter hearing both the parUes tearned Chrtl Judge passed an order of temporary injunctton on 0401-1996 whteh was subsequently wnfinned t>y tie VII AckliUonal Distrtet Judge, Raipur vide order dated 06-01-1999 by relecfing ttie appeal preferred by ttie present appellant. The statement of (rfainttff was recorded on 22-06-1997 and the case was flxed for the evidence cf defendants' witnesses and the defenctent was proceeded ex parte on 30-09-1999 and thereafter the case was fixed for judgment OR 06-10- 1999. On 04-10-1999 an applicatton fw setting aside ex parte oreler under Order 9 Rute 9 ofthe CPC was fitod by the defendants on 06-10-1999 am* the samewas dismissed on 06-11-1999and th®tearned CMI Judge vlcto (5- order dated 07-12-1999 parfially deereed the suit byaltowing their prayer for declaration of title but however he rejected the piayer of prohfeftory injunction. The plaintiff pr^erred the first appwrf and the teamed Ftret Appellate Court allowed the appeal of the ptaintiffs and totally ctocreed their sult. Appeltant / defendant during the pendeney of the appeat Wed flw cross objection under order 41 Rule 22 <rf the CPC alongwltti an applicatton under Sectton 5 of the Limitatten Act for condonatten of delay in filing the cross objection. Alter hearing th®parties toamed drst Appellate Court allowed the appeal of the respondeists / plainUffe and s^ askte the flnding recorded against issue Ne. 3,4 and 5 tey the Trial ©ourt and passed the decree of perpetual Injunction In favour of the plalntiffs and against the defendants to th®effect that he shall not infrfero wtth the possesston of the suit property described In Schedute 'A' etther peisonaUy orttiroughhisagent. Learned counsel for the appellant submite that by the hnpygned judgment the teamed First Appellate Court has not consktored the cross objecfion preferred by the appellant / defendant. Even ttie applicafien fitod for condonation of delay in submitting ttie w>ss objectten has not been deckled and for this reason the judgment and decreed passed by <he First Appellate Court is without applicatlon of mind and the same (teseives te be set aside. A$ this juncture it would be appropriate to refer to theeross objectton that has been preferred by the appetlant / defendant undw Order 41 Rute 22 ofthe CPC which isw under: 1. That by the impugned deeree the Gourts belew hav®prima faeto deelded issue no. 1 and 4 Ulegally, erroneously and wrongly. 2. That the Courts below dtel fiot consider thsrt the sutt tand was never sold but mortgaged wtth the responctents and the mortgage deed has been written. 3. That the respondents have totalty ffalled to prow issye No. 1 and4. -^- Leamed First appetlate Court jn paragiaph 4 <rf the jvc^ment whll® constelering the written statoment fitod by th®defendant has recorded a finding in paragraphs 9 and 10 ©fttieimpugned judgmentfor decicBngthe above issue In favour of the respondente / plaintifls and therefore it can not be said that the cross objecUon preferred by the appellant / ctofendant has not been considered. Concurrent finding recorcted by both th®Courts below against issue No. 1 and 4 recorded in fevour of plaintiffs / respondents Is based on unrebutted oral and documentery evictonce being the registored sate deed, the records of right and material tesBmony of plaintiffs and their witnesses and as such ttie above findir^ is a coneunrent finding offact recorded bythe both the Courts below. That the appetorrt has ateo chatlenged the findlng of the tirst Appellate Court whereby reversing the finding ®fthe frial Court the appeltate Courthas granted the decre®for prohil>itory injuncBon in fevour of the respondents/ plaintifls and againstthe defendant. Leamed counset for the appellant submits ftat the teamed trial Court has rightfy hetelthatthe appetlant/defendant has faitod to proofttiat he was in possession of the suit property and the documents exMbtted by the plaintiffe were not admissibte in wldenee. However the teamed Appellate Court allowed the appeal of the plaintiffis by relyir^ on thte document on the ground that the document produced by th®pjaintiffis coutelnot be taken tn to consktoraffon for collataral purpose. However, m my consictered opinkm the argumentofthe appellant in this regard is also untenabto. Once tt is heM that ttie plainfitfe are ttw owners ofthe sutt property by virtue ofsatedeeds as per Ex. P-5 and P-® executed in favour of their father in the year1959, the po^ession gow to the ownere and th®teamed flrat Appeltate Court was jusfified jn hokling that the plaintifls were in possession ofthe sutt property and by virtue of the above sato deeds the names of the plaintiffe were duly recorded In ttie records of rights (Rtn Pustika) Ex. P-1 and as the plalntiffo and their witnesses have categorically stated on their stotemente on oath that after purchasing thesutt land they were in continuous possession ofthe same; the finding <rf the First Appellate Court that the respondents / plahitiffe ^- Jyotishi were in possession of the suit property, can not be faulted particularty in the Ught of the fact that th®defendant dtel not ackluced any evictence (n supportofhiscase. In the lightoffte aforesaid discussjon.l am oftheviewthattheFeis no inflrmity in the concurrent findlngs of both the Courts below that the respondents / plaintiffs are the owners of Ihe sutt ppQperty and as sueh they are entitled for perpetual injunction, and there is no substantial question of law involved for adjudteation ofthe appeal. tn the result, the appeal being wtthout substance is liabte to be dismissed and tt is dismissed. Sd/- Dhirendra Mishra Judge