><; ^' /^ HIGH COURT OF CHHATTISGARH AT BILASPUR S.A. N0. 339/2005 APPBLLANT DBFENDANT RESPONDENTS Plaintiff Defendaat Shri Ugrasen Mahaati. (Died aad Deletedl l.a. Smt Shakuiitala MahantiW/o Late Shri Ugrasen Mahanti, aged about 65 years, l.b. Saat Kumar Mahauti S/o Late Shri Ugrasen Ma]iaiiti,aged about 45 years, l.C. Baast Kumar Mahanti S/o Late Shri Ugrasen Mahaati, aged about 40 years, l.d. Praksh @ Raju MahaatiS/0 Late Shri Ugrascn Mahaati, aged about 36 years, l.e. Arun Mahanti S/o Late Shri Ugrasen Mahanti, ^ed about32 years, l.f Ku.GhanchaIjMahaiitiS/otateShri Ugrasen Malianti, aged about 30 years, AU are R/o Mararpara, Kondagaon, TahsU-Kondagaon, Distt.-Bastar (C.G.). VERBUS 1, Mahendrapal Singh S/oLate Shivnath Singh, aged about 55 years, R/o Tongpal, Tahsil-Sukama, Distt. Dantewada(C.G.). 2. State of Chhattisg^h through CoUector, Distt. -Daatewada (C.G,), SECOND APPBALUNDER SBCnON 100 OF CIVIL PROCBDURB CODE. (8B :Hoa'ble Mr. T.P.Sharaa,J.) Present :- Shri Subhash Yadav, AdvOcate for the appeUants. Shn Rakesh Jha, Dy.G.A. for the State/respondenfNo. 2. None for the respondent No. l. ORAL-JUDOMENT (Passedon 14/12/2010) By fhis second appeal undcr Section 100 of thc Givil Procedure Code, 1908 appeUants have cballenged the legali^r aad propriely of the judgment aad deciee dafed 5/5/2005 passed by Additional District Judge South Bastar, Daittewada (C.G.). ia Civfl appeal No. 13-A/2Q04 reversing the judginent and decree dated8/3/97 passed by Additional Judge to fhe Court of CjvU Judge, Class-I, Jagdalpur ^"Kts i ^ 5. 6. at Sukma, ia civil suit No. l-A/96 where by Additi.onal Judge has dismissed the suit for declaration oftitte filed by respondent No. 1. As per pleadiug of fhe parties, respondent No. 1/plaintiff is in continuous possession over the suit property Khasra No. 17 area 0.423/1.04 htrs wMch was recorded in fhe name ofUgrasen. As per plaint aUegation, he had constructed vegetable garden and has planted b^ trees. He is in possession for last 20 years within the knowledge of Ugrascn. Ugrasen has not objected fhe possession of respoudent No. 1. By way of adverse possession. He has perfected his tifle over the property, Present appellants were exparte before the trial Court. Respoudent No. 1 has exaiaiaed hiinself aad has adduced docunientary evidence i.e. Khasra Paachshala aad copy of record of right. After appreciating the evidence of plaintiff/respondent No.l, trial Coiirt has dismissed the suit and saine was assailed before the lower appeUate Court. Vide judgment and decree dated 3/12/99 ia civil appeal No. 46-A/97, Secoiid Additional District Judge, Jagdalpur has aUowed the appeal aad decreed the suit. Sainc was challenged by the appeUant on fhe ground that no notice }ias been served upon him. Exparte judgiaent and decree was set-aside aad agaui after hearing the parties by allowiag fh.e appeal lower appeUate Court has decreed fhe suit vide judgment aiid decree iinpugned. Sbri Subhash Yadav, leanied couusel for the appcllflnts aad Shri Rakesh Jha, Dy G.A. for the State/respondeut No. 2 are heard. ijudgment rmpugned and record ofbofh fhe Courts below perused. Leanied couasel for the appeUants veheiaently aiyied that iu the present case, alfhough appellants have not filed any pleaduig or ^ 8. evidence before fhe Court below but even otherwise respondent No. 1 has faUed to prove fhe title over the suit property. He has not adduced coniplete docuinentaiy evidence ia support ofhis claun of possession. He has not pleaded and proved fhat his posscssion was hostile to fhe appeUants. In absence of such evidence, respondent No. l was not entiUed for any claiin of declaration of tifle therefore, substantial question of law for decision of fhte second appeal would be "Whether fiading relatiug to acquisition of titk; on the basis of adverse possessiou oflower appeUate Court is perverse?" Shri Rakesh Jha, learaed Ckwt. Advocate fprjthe State/respondent No,2 opposed fhe second appeal. As per pleading, i.e. plaiat and evidence adduced on behatf of respondent No. 1, respondent No. 1 Uas speci&catly plcaded that he is in continuous possession upon the suit property for last 20 years within the kaowledge of appeUaat Ugrasen. He was using the laud as a vegeteble garden; he has plaated big trees ia the laud. Appellaats have not objected the possession ofrespondent No. 1. Possession of soine years over the property of the appeUants has becn recorded by fhe Revenue Authority. Suit was decided exparte. First appeal was also decided exparte therefore, at the instaace of appcUaats exparte judgmeut aud decree passed ia civU appeal was set-aside aad again opportuiuty of hearmg was given to Ugrasen thereafter, lower appeUate Court has passed fhe judguient arid decree impugaed. After settiag aside the exparte judgnieut and decree. Present appeUaats have not raised auy ground before the lower appeUate Court. Present appeUauts have not filed any petitiou for settiug aside the exparte judgment aad decree passed by trial Court although same was for dismissal of suit. They have not filed any petition for providing opportunity of filmg written statenient or to contest the claim speciaUy in fhe l^bt of previous exparte judgment and decree passed by lower appeUate Court on fhe inatenal avaUable on record. In these circuinstances without any pleadiag and evidence of the appeUaats, lower appeUate Court has rightly decreed fhe suit on the basis of exparte pleadiug aad evidence which was suffidtent for decreeiug fhe suit for declaration of title of the respondent No. 1. In absence of any claini, pleadiag and evidence of appeUants, I do uot fiiid aay substantial question of law for decision of this second < I appeal. Consequently, second appeal is witliout substance, same is Uable to be dismissed aad K hereby disuussed. No order as to costs. Sd/- T.P.Sharma . Judge