<-- •nfA^/ ivtS: isQjicr'i FN THE HON'BLE HIGH COURT QF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. 3 O 72011. APPHLLANTS (Defendants) 1. ^' >-^vi' ^€^ '^^ r 2. Note •RESPONDENTS : 1. (Defendants) Labhoram, S/o Late Sampatlal Sahu, aged about 72 years, Occupation Agriculturist, Jhaduram, S/o late Sampatlal Sahu, aged about 65 years, Occupation AgriCulturist, Both are residents ofMohtara, Tahsil Malkharauda, Distt. Janjgir Champa (C.G.). VERSUS Unnila Bai, D/o Kursoram Sahu, Wife of Rambhaghat, aged about 47 years, Occupation Agriculturist, At- Bhotiya, Tahsil Jaijaipur, Distt. Janjgir Champa (C.G.). . Prarmila Bai, D/o late Kursoram Sahu, W/o Paluram Sahu, aged about 34 years, Occupation Agriculturist, At Dabhra, Distt. Janjgir Champa (C.G.). State of C.G., Through Collector Janjgir Champa (C.G.). SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE . fflGH COURT OF CHHATTISGARH AT BILASPUR &B: Hon'ble Shri Prashant Kumar Mishra Second Appeal No. 90/2011 APPELLANTS : Labhoram and another Versus RESPONDENTS : UrmUa Bai and others Appearance; Shri Akhilesh Kumar, counsel for the appellants. Shri Akhil Agrawal, Panel Lawyer for the State'respondent No.3. SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CFVIL PROCEDURE ORAL ORDER (27.06.2011) Heard. (2) This is detendants appeal challenging tlie concun-ent judgment and decree passed by the courts below allowing plaintiffs suit for partition and separate possession. (3) Admittedly, the land was held by one Sampat who had tfaree sons namely labhoram, Jhaduram and Kursoram. PlaintifFs are the daughters of the Kursoram, whereas the defendants No. 1 aiid 2 are the two other brothers ofKursoram. It is also not in dispute that the name of the plaintiffs have been recorded in the reveaue records as joint owner along with Labhoram and Jhaduram. Ex.P-1 is the copy ofrecord ofright in fonn ofB-1 ofthe year 2002-2003 i.e. the year when the suit was filed in March, 2003. i (4) The appellant/defendants do not dispute that plaintiffs are 'i-^< . . - daughters of Kursoram, their defense in the suit vvasjhat in 1973 r E ^tthf??^^si^w^-*-^ •••-•• -^.-•.^•~- ET':"°^'^'.t'^S°'"?"Si^E';"S^gSm?g^?.:'.''.T3S?^^S '^ ^^^^^SS^Bs^S^^^^^^^^^^^S^^^E '.'.'•J^.^ ^—ln-61A^ff';h^.^..__^_-^ \^ IIi 1: ;; ^ S! n 2- Kiirsoram was critically ill and for his treatment his wife Mogra Bai, with the consent of Kurso, obtained financial assistance from his father Sampat and executed one Ikramaina in form of sale-deed. The defendants also placed reliance on a document titled as Ikramama receipt dated 15/02/1988 (Ex.D-1) in which the present plaintifFs relinquished their right ffn the suit land as also on a Panchayat Faisla (Ex.P-2). (5) Both the courts below refused to give any legal effect to the documents on the ground that the said documeuts deal with the riglit of the plaintiffs and either alienates or relinquishes their right on immovable propert^' of the value more than Rs.lOO'- thus compulsorily registerable, however in the absence of any of the document having been registered, the defeiidants cannot be given any benefit ofthe said document. (6) Leanied counsel for the appellant, relying on the judgment reported in matter of VeIIiyottummeI Sooppi and others Vs. Nadukandy Moossa and others, AIR 1969 Kerala 222 has argued that the present is the case ofouster ofthe plaintitfs from the joint family property and the "plaintiffs have admitted their ouster in the V-"- documents as well as in their statement and more so in view ofthe fact that the appellants are in possession ofthe suit land exclusively fi-om 1973. (7) Thejudgment relied by leamed counsel for the appellant is on the principte ofadverse possession. .s aW..t-5^&.;S^,e^^^;siii. •v.^'VKS^'Sa^&Ss.^M :^SS=T^^^?.'a5 ^£ ^ \. T %,SSSS , • ^ !%8s-?""^3 c^l y,^!' 3- (8) In the documents Ex.D-1 and D-2 relied by the defendants the plaintiffs have impliedly permitted the defendmits to occupy the land meaning thereby tfaat even if the defendants are in possession, the said possession is pennissive in nature. (9) Even otherwise, the judgment is about flie principles of adverse possession, whereas in the p'esent case no issue regarding adverse possession was framed by tiie trial court. Plea of adverse possession and finding thereon is essentially a question of fact at th& first instance, therefore the said plea cannot be allowed to be raised for the first time in second appeal more so when no such plea is found to have been raised in the written statement. (10) There is no substantial question of law arising for detennination in this appeal. (11) Consequently, the appeal fails and is hereby dismissed. Sd/- C" Prashant Kumar Mishra Judge t^-'