^ % ! "s^ LE IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) SECOND APPEAL N0. 5^7 /05. APPELLANTS PLAINTIFFS M, /.*~ *•"w /^iY / /\s' / ^ //^ 1~ ..fi ^. .<-"•. ^^' r^ "fi .<f \ :1) Ghasiyaram,S/o Rajman Gond, aged 67 years. 2) Budhram, S/o Rajan Gond, aged about 63 years. 3) a. Aasharam, S/o Sudhuram, aged about 34 years. b. Atmaram, S/o Sudhuram, aged about 32 years. c. Ashok, S/o gudhuram, aged about 28 years. d. Charmo Bai, Wd/o feate Sudhuram, aged about 52 years. ^,-^rs 4) a. Smt. Kaushilya Bai, Wd/o Late Tularam. /•b. Vishnuram, S/o Tularam. 5) Pilaram, S/o Rajan Gond, aged about 40 years. e 6) Sukram, S/o Rainsingh Gond, aged about 45 years. 7) Shivlal, S/o Rainsingh Gond, aged about 37 years. 8) a. Chheduram, S/o Devisingh, ^ agedabout 45 years. b. Ishwar, S/o Devisingh Gond, < aged about 39 years. All R/o Sarangpal, Tahsil & P.S.- Kanker, Distt^Kanker (C.G.) VERSUS NON-APPLICANTS :1) DEFFENDENTS Bhagwati Bai, 'W/o Chandan Singh Gond, aged aboirt 72 years, Occup.-Agriculture, R/o Sarangpali, Tah. & P.S.-Kanker, Distt.-Kanker (C.G.) 2) State of C.G. Govt., throi^h The Collector, Kankar^©.G,^ APPEAL UNDER SECTION -TOO OF C, pjf. v.nTT~man ~o rrcrrc; ~0 r m^ iecond Appea! No. 38S of 2005 i%5-: ntiffs anfi o Vs. ;iBai State of Chhattisgar oys ihri Sanjeev Agrawal, PaneS Lawyer. ifc^ S [Passed onoslWW Hhi?- acrfil iSa This is the plaintiffs' second appeal under Section 100 of the Code of Civil Procedure (for brevity 'the Code'). Ths plaintiffs have preferred this appeai as their suit for declaration of title and possession has been dismissed by the tria! Court by order dated 08.03.1999 passed in C-ivil Suit No.SS-A/92 and the appeal preferred by them has aiso been rejected by the learned First Additiona! District Judgs, Kanker vide his order dafed 02.03.2005 passed in CivH Appea! No. 55-A/2004. (Parties shall herelnafter be referred to as per their description before the tria! Court.) Case of the pte.intiffs is that land described in schedute 'A' of the plalnt admeasuring 11.67 acres situated at vilIage-Sarangpal and land described in scheduie 'B' admeasuring 23.84 ac.res situated at viliaae-Patoud were eariier recorded in the name of ancestors of the parties namefy Khandu ^nd Mohan slnce the period of Kanker riyasat. After their death, the nafties -of their heirs nameiy Bodru, Bansingh, Sukaiu-all sons of IViohan and Raisingh-son of Khandu were recorded. However, the father of defendant No. 1 Raisingh iiiegaliy got his name mutated in the above land and after his death, defendant No. 1 got her ns.me mutated in the above suit property. The plaintiffs are entitled for % share over the suit land and 1 accordingly, the above suit for declaration of Vi share and possession has been filed. 3. Defendant No. 1 in her written statement denied the averments of the plaint and pieaded that since the tlme of Kanker riyasat her father Raisingh-son of Khandu was the recorded owner of the suit properiy which is self acquired property of Raisingh. Raisingh vide his registered Wii! dated 16.05.1952 had bequeathed the land situated at village- Sarangpa! to defendant No.1 and since then she is in possession. Whereas defendant No. 1 inherited the land situated at village-Patoud after the death of Raisin.gh in the year 1960. Their ancestors Mohan and Khandu were iiving separately since the tlme of Kanker riyasat and the plaintiffs have 40 to 50 acres of ancestra! land in viIla'ge-Sarangpal. 4. On the basis ofthe pleadings ofthe respective parties issues were framed by the iearned triai Court and on the basis of documentar/ ar.d oral evldence availab!e on record, the iearned trial Court dismissed the suit of the plaintiffs by recording a finding that the piaintiffs have failed to prove that the suit iand was recorded jointly in the name of their ancestors Mohan and Khandu and after their death, it was recorded in the name of their heirs Bodru, Bansingh, Suka! and Raisingh. !t has been aiso held that it is not proved that the suit land is the seif acquired property of Khandu or Raisingh had illegaliy got his name recorded over the sust land. On the basis of the above flndings, it has been heid that the p!aintiffs are not the owner of % share and therefore they are not entitled to obta!" possession of % share of the suit land and that the sult is barred by iimltation. 5. The p'aintiffs preferred civil appeal against the judgment and decree passed by the learned triai Court. However, the same has also been dismissed by the impugned judgment and decree by the learned -, Additional District Judge with the finding that partition had taken place since'the time of ancestors of the parties and as per Ex.D/2 father of defendant.No. 1 is the recorded owner of the suit iand situs.ted at viliage- Sarangpal since 1941-42, as per document of Ex.D/4 Raisingh is fte recorded owner ofthe above land since 1947-48 and as oer document of Ex.D/5 ths name of Bhagwatl Bai finds place from 1 952-53 in the iand sltuated at vi'lage-Sa'angpa! and since then her nam.e is continucus'u- ^ recorded as Bhumiswami in the above land. On the basis of the oral evidence, the learned appel'ate Court heid that the plaintiffs are cultivating over 40.85 acres of land since the time of Mohan-their grand-father and )!aintiffs Budhram Ghasiya and Peelaram are cultivating the !and which had fallen in the share of Boclhru. Thus on the basls of documentary and ora! evidence availabie on record, the tearned appellate Court had held that partition has taken piace in the famiiy iong back during their ancestors' perlod and the iearned tria! Court has rightly heid that the piaintiffs have not. been able to prove their titie over the suit property. 7. Learned counse! for the piaintiffs submits that both.the Courts be!ow havs disregarded the documents of Ex.P/1 and P/2 being the document of Kistbandhi Khatouni for viliage-Sarangpa! where the names of Bodhs'u, Sukalu-sons of Mohan and Raisingh-son of Khandu arejointly recorded as owners of the property described in schedu!e 'A' of the plaint. Similarty, the document of Ex.P/3 has aiso not been conslciered in whlch the nasnes of ancestors of the plaintiffs and defendant No, 1 are recordsd as jolnt ov/ners of the land described in scheduie 'B' situated at vitSa.qe-Patoud. He further submifs that the suit has been dismissed by the tria! court on the ground that name of defendant No.1 is recorded since 1952-53 and the sult has been fl!ed on 09.09.1992, therefore, the suit is barred by law of lim'tation. However, learned trial Court has ignored this fact that the cause of action arose on 29.05.1992 when defendant No. 1 executed a Wil! with a vlew to disentit!e the piaintiffs from the suit property. 8. i have heard learned counse! for the appeilants/pl.aintiffs. 9. The above objections raised by the pialntiffs has been duly considered by both the Courts below and the same have been rejected on the vaiid .ground that the documents of Ex.P/1, P/2 and P/3 pertain to the period 1953-54 whereas even before 1953-54, the iand was recorded in the name offather of defendant No.l-Raisingh in the year 1941-42 and 1947- 48. The plaintiffs have admitted this fact that the name of defendant No. 1 was recorded. over the suit Sand dsscr'bed in schedule 'A' from 1952-53 in s'.iit nr' shs was alone in Dossession others, which is based on the admission of the wltnesses and the piaintiffs. Thus findings recorded by both the Courts beiow are based on proper app'reciation of oral and documentar/ evidence available on record. On the basis of aforesaid discussions, ! am of the opinion that findings of both the Courts below as-e concurrent findings of facts and the learned counsel for the appei'ants/plaintiffs has not been ab!e to polnt out any perversity or illegaiity in the impugned judgment and decree and no question of !aw much less any substantia! question of la'A' is involved for adjudication ofthis appeai. Accordingiy, the appea! being dsvoid of meriis desep/es to be dismissed at the motion stase itseif and it Is dismissed. Sd/- Dhirendra Mishra Judge w '^ZrA^