^y Appellant Defendant HIGH COURT OF CHHATTISQARH AT BILASPUR , Secimd Appeal No.287 of 2010 • » Chhatrapal Singh S/o Late Shri Gajraj Slngh AgKl about 74 years R/o Seepat Road, Bilaspur Tahsil & District BUaspur (CjG.) • ; * * Respondent Plaintiff 2. Vereus Ajay Singh S/o Labe Shri Gajra} Singh Aged about 60 years R/o Aiwind Marg, New SarRanda Bilaspur, Tahsil & District BitasB.if (C.G:) State of Chhattlsgarh Through Collector Bilaspur, Bliaspur {C.G.) ~^i (Second Appeal under Section 100 ofthe CPC) Mr.Upendra Bharat, counset forthe appellant Mr.Goutam Khetrapal, counsel Tor respondent No.1. IVIs Sangeeta Mishra, Panel lawyer for respondent No.2/State. (SB: Hon'ble Mr. T.P. Shanna, J.) ORDER (ORAL) (11-8-2011) By this Second Appeal under Section 10) of the Code of Chrtl Procedure, the appellant has chaltenged the legaltty & propriety of the judgment & decree dated 26.8.2010 passed by the Distriet Judge, Bilaspur in Civil Appeal No.32-A/10, affirming the judgment & decree of decreeing the suit in favour of respondert No.1 dated 31.3.2010 passed by the Second Clvil Judge Class-1, Bilaspur in Civil Suit No.633-A/^X)5, whereby suit for declaration of title and permanent injunction has been decreed in favour of respondent No.1. As per case of respondent No.l/plaintiff, he has purchased the suit property and mutated his name and after eKx|uisitfon of title over the property in the year 1968, he is in possessionof suit property. Present appellant/defendant is brother of respondent No.1. Name <rf the present appellant has been mutated in the year 1993, then he preferred appllcation before the Tahsildar, Bilaspur which was dismisswl on 15.3.2004. Thereafter he has filed suit for declaration and permanent ,-sy:3%€\ /^'^ 'V1 'VffKf^:r^S^. Si '•saSSsff^ g ..^-y 'i^2S^: -2- injunctton agalnst the appellant. By fiting written statenrent the present appellant has denied adverse atlegation and has specificatly claimed that he is owner of the suit property and property has been purchased at his instance by respondent No.1, but instead of exeeuting sale deed in name of the appellant maiafidly respondent No.1 has succeeded in execution of sale deed in his name, but respondent No.1 hasadraitted fhe aforesaid facts and right of the appellant by executing agreanent Ex.D/1 on 15.7.95 and also admitted the factum of partition between appellant's son by atte^ing Ex.D/2 on 3.2.2001. Respondent No.1 has filed appiication for correction of record which has been dismlssed fay detailed order dated 15.3.2004 by the Tahsildar and affirmed the ctaim of the appellant. After fiiing written statement the appellant has also fited counter-claim over the suit property and has claimed that he has purchased the suit property on 3.4.1868, but instead of purchasing the suit property in the name of the appellant, respondent No.1 has purchased the suit property in hls name. He is in continuous possession since 1968. Respondent No.1 has aiso executed ^rsem®rton 1S.7.95 and has admitted the claim of the appellant. The appeBant has acqulred title and ownership over the property on the basis of Eriverse possessiCTi and suit is barred by limitation. On the basis of pleading of the parties, issues were fram«land after providing an opportunity of hearing to the parti^, thetrial Court has decreed the suit in favour of respondent No.1 and has also dismissed counter-claim of the appellant. Same was challenged before the appellate Court and by judgment & decree impugned the DistriGt Judge, Bilaspur has dismissed the appeal. 1 have heard tearned counsel for the parties, perused the judgmert & decree impugned, judgment & decree of the trial Court and records of the Courts below. Leamed counset for the appellant vehemently argued that originaily suit for declaration and permanent injunction was filedon behalf of respondent No.1 who was under obligation to provQ hte ctaim by adducing oral and documentary evidence. He cannot take the benefit of weakness of opposite party, he was required to prove that transaction was also Benami, although Benami Transactton Prohibition was not "'s -'3 — in force in the year 1968. Respondert No.1 has admitted his signature over Ex.D/1, therefore, heavy burden was upon him to provethe fact that even after exTCution of Ex.D/1 title has nd been devested over the property, but he has not discharged the aforesaid burden by adducing oral and documentary evidence, inter alia, the f»esent appeBant has proved his counter-ciaim by adducing oral and documentary evktence including the order of Tahsildar, Bilaspur dated 15.3.2004 Ex.D/3A whtelt reveals that the appellant was in possesston of thesuit properiy sinoe last 34 years. Ownership and possession of the present ayyeliant reflwts from Exs.D/7, D/8 and D/9 revenue reconj i.e. record of right and khasra panchshala since 1994-95. Leamed counselfurthersubmitsthat the trial Court has not given specific finding relatingto poss^sien <rf respondent No.1, therefore, decree of declaratipn of titte and permaner* injunction was not tegally possibte and such decree^is not suslainable underthelaw. As per plaint allegation and claim, present respondent No,1 has acquired fitle over the su'rt property in the year 1968 and hjs name has been muterted in revenue record. On the basls of Ex.D/1 agreement, the present appellant has tried todisturb the po^ession of respondent No.1 and has succeeded in mutating his name. Inter alia, as per counter-clsBm of the appeilant, he has purchased the property through respondert No.1, but malafidly respondent No.1 has succeeded in execution ofsale deed in his favour. Virtualiy by making sudi pleading tihe pr^ent appellant has tried to claim and plead that the alleged sale deed dated 3.4.68 executed in favour of respondent No.1 was forg«i,but no such relief relating to such sale deed even clalm that such sate deed is not binding, has not been claimed by the appellant in his counter-elaim. ; The appellant has filed counter-claim on the basis of adverse possession. In support of claim of respondent No.1, respondent No.1 has examined himself, Raghunandan Singh, Hariprasad Dubey, Ramkumar Sapre, Ramayan and Bahoran and proyed sale deed datod 3.4.1968 Ex.P/4 and another sale deed Ex.P/6 relating to the ^ime laid. Revenue record Exs.P/7 and P/Q shows the possession of respondent No.tsince 1984-85. •^6 ^- 8. By examining hlmself, respondent No.1^>laintiff has denled the existence of Ex.D/1, but has admitted his signature over Ex.D/1 . He has denied the suggestion that in the year 1995 he has handed over the suit property to the appellant. Raghunandansingh has admitted hls signature over Ex.D/2. Hari Prasad Dubey has denied signature over Ex.D/4, tnter alia, the present appeliant by examinlng himself has placed rellance upon Exs.D/1, D/2 and D/3 alleged agreement. He has admittai in para 17 o? his cross-examination that partition was effected between him and respondent No.1 in the year 1968 and it was recorded in the year 1970, but in para 18 he has admitted that his parents and e plaiRtiff ware residing wlth him. 9. As per claim of the parties, the pre^nt appellant has not ctoimed any relief relating to sale deed executed in the year 1968 by one Prabhat Kumar in favour of respondent No.1 relating to the aforesaid property and on the basis of such document, name of resporrient No.1 was mutated in revenue record. Subsequently on th®basis of Ex.D/1 dated 15.7.95, name of the present appellant has been mutated in revenue record which reflects from Exs.D/7, D/8 and 0/9, which was challenged by present respondent No.1 before the Tahsildar vide EX.D/3A and vtde order dated 15.3.2004 the Tahsidar, Bilaspur has rejected the claim of respondent No.1. Thereafter, respondent No.1 has filed the suit. 10. Definitely, respondent No.l/plaintiff has not ackiuced suffictent evidence to prove the source of income at the time of execution <rf sale dead, byt in absence of any claim relating to such document it was not much n«^ssaryfor respondent No.1. 11. In order to prove his case, respondent No.1 was under obligation to prove that he has purchased the land from other person, he came into possession and his name mutated in revenue record, inter alia, in order to prove counter-claim of the appeltant, he was under obligation to p-ovs genuineness of Ex.D/1 executed on 15.7.95 by respondent No.1. Respondent No.1 has not admitted genuineness of this document. Exs.D/1 and D/3 have been executed on 15.7.95. EX.DQ has been executed on 3.2.2001, but stamps of aforesaid documerts were purchasKl on 14.7:95. On the basis of Ex.D/1, name of the appallant has been mutated in revenue record. The appellant has not adduced any l^ / ^- evidence to show that it has been mutated after providing an OCT>oi^inity of hearing to previous Bhumlswami. Present respondent No.1 has specifically deposed that he was in possession of the alleged ajit property. Alleged Ex.D/3A order dated 15.3.2004 reveals that the appellant was in possession since tast 34 years. The appeltant himself has not deposed in his evidence that he was resUing at Sarkanda and he was in possession of the aforesaid suit property since last 34 yeara. 12. After appreciating the aforesaid material evidence, the trial Court has decreed the suit and dismissed counter-claim against the appellant. District Judge, Bilaspur has also dismissed the aj^eal. Both tha Courts below have not committed any iliegality warranting interference; 1 do not find any substential question of law for the decision of this second appeal. 13. Consequently, the appeal being devoid of merit is liable to be dismissed and "rt is hereby dismissed at the motion stage itseif. No order as to costs. _— Sd/- T.P. Sharma Judge