"^. ^^ (^r '. ;t it.i.ssa IN THE HIGH COURT OF CHHATTISGARH AT: BILASPUR :/j-.^j: S.A.No. ? '^/ / 2004 ValuedatRS.33600.00 Court fee affixed RS.3300.00 •m APPELLANT: ^-"Subhash Venna, aged 58 years, son of late Shri Gyan Chandra Verma, resident of Ramchandra Lal ka Bada, Ramnagar ward, Gondpara, Bilaspur, Tehsil and district Bilaspur (Chhattisgarh) ('Appellant/defendant') VERSUS RESPONDENTS: ^../"^A ^^•••'G' ,. ^/t. Vishwanath Prasad Sinha, aged 65 years, son of Shri Brijendra Prasad Sinha i (^..••'"l^.. ^ x"2- smt- Krishna Smha, aged 58 years, wife 0\.-- ^ ...^ /^of Shri Vishwanath Prasad Sinha, through ^\^'.~^y''".•'''''', ^" ^^/'^^al Vishwanath.Prasad Sinha, son of Shri Brijendra Sinha, Both resident of Ramnagar ward, Gondpara Bilaspur, Tehsil Bilaspur, district ^x^ /y>^ -^y^ Bilaspur (C.G.) (Respondents/Plaintiffs) SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVTL PROCEDURE, 1908. '3ST ^|q|<a<;^. ®Tt)<H'|to;fac'11-91j,< ^.6:.:A.:...E2'/^ sf^V^v (1pf3^tT) Sf^; W fi[-<i+ ^mr srtw *»ii<f» B ScS. :;:? •3:'/''' 1»8.02.2005:- Shri Somnath Verma, learned Shri Rupesh Shrivastava, lcounsel for the appellant. learfied counsel for the respondents. app^al The instant second appellanVdefendant against the jud^ment passed by the District Judge, Bil the appeal against the judgement Civil suit No. 20-A/1996 by Civil| dismissed on the ground that the barred by iaw of limitation. has been preferred by the and decree dated 09.08.2004 in M.J.C.No. 29/2004 and by which decree dated 15.12.2003 passed in Judge, Ctass-i, Bilaspur has been ^ppea! preferred by the appellant was lasppr arid The parties hereinafter shall before the triai Court. befijire The case of the plaintiff owner of the suit property describetl which he purchased on 26.11.19801 the name of his wife i.e. ptaintiff NoJ property. However, the defendant the suit property which is marked vj/ over the same and has threatenedl dared to oppose his illegal act. vacant possession of the suit landj against the blockage of the drain. !^)M|^i*<]i ^n^^fi ^F fe^ <F*I<-$)< ^r afRpT sn^r fie described as they were described Ttius the trial Court was that he is the in the map attached with the plaint for a consideration of Rs. 21,000/- in 2 and he is in possession of the suit encroached upon some portion of nth red ink, by construction of a slab to block the drainage if the plaintiff >, the above suit has been filed for declaration and perpetual injunction Had GRPRJ—FS/350— 12/2000—50.000. ^^r •^i'4ici'4, 'cS'Til'H'ie, ISI^KH^ ..s:^.^.:...^.3!..l.^... 3?i^T'(ra^T (' "c^H 3?T^T ^Rl^ B:': '^.6^-?^"y ll.;^si&... s?^%^ e\len oflthe th^t stelted The defendant in his writtenl the ownership of the property and contents as alleged in paragraph-3 he had encroached upon any part drain of the plaintiff. He submitted property. The defendant further suit property since his birth. On| respective parties, the Court below statements of ,PW-1 .Awadesh Kum^r Sinha, DW-ISubhash Verma, and The finding of the trial Court was tha( suit property which was purchased and the portion described by red inkj purchased by the plaintiff as suc|i, declaration of title. It has been furthdr the property, the defendant had was decreed accordingly and the granted in favour of the plaintiff No. the defendant shal! not interfere the suit !and and after demolition of be handed overto plaintiff No.2. with Against the above judgment, which was filed after the prescribed first Appellate Court dismissed the ^rafa'N-WTCTf •i| •fe^•(fsR?R ^aifan sii^i 1 statement did not specifically denied he did not categorically denied the 4f the plaint. However, he denied that iand of the plaintiff or blocked the he is in possession of his ancestral that he was in possession of the the basis of the pleadings of the jramed issues and after recording the r, plaintiff/PW-2, Vishwanath Pratap PW-2 Vishnu Yadav, decreed the suit. the plaintiff No. 2, is the owner of the registered sale deed on 26.1 1.1980 is the part of the property which was i, the plaintiffs are entitied for the held that on the disputed portion of by casting a slab and the suit |decree for perpetual injunction was ]2 against the defendant holding that b|y encrbached the the possession pf the plaintiff over ff^ffl} constructed pfeperty, the suit iand the defendant preferred an appeal period of limitation and the learned applicatlon filed for condonation of GRPRJ—FS/350—12/2000—50,000. sn^i^Tft'iw wnsiityiwiw ^se-sS 's^ -^WW^, aflly'is, 'f^TRiy s sn^i'tT3?7 (1=113*1ly?) reaaon delay, on the ground that the the appeal belatedly is not appropri^ite Learned counsel for the has challenged the judgment and ground that the description of the correspond with the sale deed of deed, the plot number is not ment ^ identity of the propertx.wbieh was learrled decree the suit and they ought to alone and for this purpose the has relied upon the decision report^d of Ramaooal Vs. Surat Ram. apifiellant/defendant by the instant appeal (jlecree passed by the triai Court on the property given in the plaint does not lAnnexure P/11 as in the above sale loned and therefore, in the absence of itot proper for both the Courts below to ttave dismissed the suit on this ground counsel for the appellant/defendant in 1997H) W.N. No. 128 in the case The submission of the app< force as the plaintiff has clearly description of the property whicjh registered sale deed giving the has described the same in the appellant/defendant has not specifi< paragraph-3 of the plaint and identity of the suit land is not estab| appeilant/defendant that the app^al dismissed by the first Appellate fiied after the prescribed period of| Court ought to have ailowed the therefbre <»l<<id'lfl-<^wS'? f5CS <!«i<sTC ^anwTsn^r assigned by the appellant for filing and sufficient. lant/defendant in this regard has no a\^erred in paragraph-3 of the plaint the was purchased by him through bo(indaries of the disputed property and |nap attached with the piaint. The ;a!ly denied the pleading contained in s, at this stage it can not be said that |ished. The other ground raised by the preferred by the him has been ;out1 solely on the ground that it has been !imitation whereas the first Appellate ipplication under Section 5 of the GRPRJ—FS/350—12/2000—50,000. ^sr "4i^id'4, »Tilyic, fsi<ni'Hy,< ..^•.^...:..0./..'/&.i(.. '<T^T 3?i^T 'ffl>*l y;^::S -.£:B"^^ ^s,#KVS%, assigrfed of de(ay df ppellant/cjefendant evgn Limitation Act as the reason proper and therefore, learned first the application for condonation However, from the perusal the application for condonation of dj Act was preferretf by the a[ support of the same and learned| application on the ground that appellant/defendant, he was present] to first week of January, 2004 and| preferred the appeal as the delivered to the him and on the dismissed as barred by !aw of linj consideration the evidence availabli decreed by the trial Court after available on record and aftergoing parties, it does not call for any interf^r question of iaw for admitting the Therefore, the instant second appe^ accordingly dismissed. for delay in filing the appeal was 4ppellate Court ought to have allowed certifled With the aforesaid observa e^i^[fi-4t7i ^ffl^if ^ Ts^l •d^i-^.i? '^i'affipTsn^T the impugned order, it is ctear that l^lay under Section 5 of the Limitation without filing any affidavit in Appellate Court has dismissed the according to the admission of the |in Bilaspur from 26th December, 2003 as such in between he could have copy of the judgment was duly |above ground the appeal has been (itation. Even otherwise, taking into 14 on record, the suit has been rightly consideration of the evidence t|irough the pleadings of the respective and also there is no substantia! instant second appeal for hearing. i! is liable to be dismissed and it is obiective interf4rence However, in the facts and circjumstances of the case, there shall be no order as to costs. ions, M.C.P.No. 1769/2004 stands GRPRJ—FS/350— 12/2000—50, .,*> Sd/- Dhirendra Mishra Judge ^ ^