ERND WeSwwé ............ “.2" " dawé Mid % IN THE HIGH COURT OF JUDICATURE AT BILASPUR [ CHHATTISGARH] ' $§mg§g F3@FB@ETJ SECOND APPEAL NOQ C9 OF 200g / 1: UNDER SECTION 1C0 OF THE CODE OF CIVIL PROCEDURE 1908 APPELLANT / ,PrCmlal S/O. Chabilal Pandey aged about 75‘ years, Through Attorney Shashikant, S/O. Premlal R/o. Kokpur, Tah. Dongargaon, Distt. Rajnandgaon (C.G.). VERSUS RESPONDENTS g 4; yKRajesh S/O. Dev Singh aged about 42 years RV’V "Suresh, S/o. Dev Singh aged ' i 0 € about 4O years. / {3? \1: wurga Bai, D/O. Dev Singh 399 5K aged about 44 years. \ $\Xa{<$ VG“ k A11 are r/o. Kokpur, Tah. g. Dongargaon, Distt. Rajnandgaon (C.G.). State of Chhattisgarh. Through Collector — Rajnandgaon, Distt. Rajnandgaon (C.G.). ; . 4i HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’bie Shri Justice Prashant Kumar Mishra Second Appeal No. 40 af 2006. Premiai. Versus Rajesh and others. JHDGMENT Post for la- 06 -2D11 HIGH COURT OF CHHATTISGARH. BILASPUR S.B. Hon’ble Shri Prashant Kumar Mishra, J. S.A. No.40 of 2006 APPELLANT Premlal. Versus RESPONDENTS Rajesh and others. Annearance: Shri Pramod Verma, Senior Advocate with Shri Sumit Verma. counsei for the appeHant. Shri P.K.C. Tiwari, Senior Advocate with Shri Shashi Bhushan: caunsel for respondents No. 1, 2 & 3. Shri Sanjeev Agra’wai. Panel Lawyer for the State/respondent No.4. \JUDGMENT (M IoL/2011) The present appeal under Section 100 of C.P.C. has been preferred by the unsuccessful plaintiff whose suit for declaration and in the event he is not found to be in possession, for delivery of possession, has been dismissed by the Courts below. (2) The suit was preferred with respect to 0.08 acre (8 decimal) of land bearing Khasra No. 122/1 at village Kokpur, Tahsil — Dongargaon, District — Rajnandgaon. it was stated by the plaintiff that the suit land was recorded jointly in his name and in the name of defendant No.2 Satyadev who is his real brother. The suit land has fallen in his share in the family partition; however the defendant No.1 is trying to encroach upon the property and obtain possession thereof and has atso moved an application for recording his possession before the Tahsildar Dongargaon which was allowed creating a cloud on his title. The piaintiff prayed for delivery of possession. in the event, he is not found to be in possession of \ the suit land. (3) The suit was oveferred on 26(02/2000. The defendant No.1 was proceeded ex-parte on 27/04/2000 and on the said date it was recorded that the Process Server has submitted a report that the defendant No. 2 has died about six months back, Name of said defendant No. 2 was, subsequently deleted from the array of the parties ieaving the defendant No.1 Sushila Bai and defendant No.3 State of Madhya Pradesh as the contesting defendants, however. since defendant No.1 was already proceeded ex-paite the ex—parte evidence was recorded. $0 (4) The trial Court dismissed the suit by its judgment and decree dated 23/07/2001. According to the trial Court the plaintiff failed to produce copy of the order passed by the Tahsildar by which it was directed that name of defendant No.1 should be entered in the revenue record and thus the validity of the said order cannot be examined in the absence of the documents. In the trial Court the plaintiff filed EXP/3, the maintenance Khasra of the year 1988-89 onwards in which entries has been made in column 12 thereof that name of defendant No.1 is recorded by virtue of order dated 24/06/1993. Apart from this no other document like the original order of Tahsildar was submitted in evidence. (5) Challenging the judgment and decree of the trial Court the plaintiff preferred the first appeal which has been dismissed by the impugned iudgment and decree. (6) The present second appeai has been admitted on the following substantial duestions of law :- ‘Whether both the Courts beiow erred in declining to.“ grant relief to the appellant/plaintiff as prayed for since the evidence led by the plaintiff that the plaintiffs had received the suit land in partition was wholly unrebutted and in x/ Khasra Panchsala mere possession of Susheela Bai was \ recorded ?“ ,y \ \ \ ¥ L// .43“ (7) of C P C seeking leave to amend plaint. The plain'tiff wants to delete the nleadmus contained In para 7 and 8 of the plalnt wherein It has been pleaded that because of the order passed by the Tahsrldar Dongargaon drrectma entnes m column 12 of the maintenance Khasra reaardmg possession of defendant No.1, a cleud has appeared on his tltle The olamtrff also wanted to delete the relief claimed m oara 101 of the olamt whereby he sought declaration of his title The aooenant has preferred an appiication under order 6 Rule 17 /,\ \ \ \ \ appeal preferred by the appellant before the Sub DiVisronai Officer Respondents No 1 to 3 who are the legal representatives of oridinal defendant No1 Sushila Bai have made two applications under Order 41 Rule .27 of C.P.C. to produce additional eVidence on record -r The said respondents are trying to introduce the copies of the application preferred before the Tahsildar, the order granted by the Tahsildar restralnma the defendant No.1 to raise construction on the surt land the \/ (8) plarntlh/appellant has been contested by the respondents No 1 to 3 This Court has consrdered the rival submission and In its consrdered opinion 'this Court fnds that the application does not deserves to be allowed lt Is to be seen that the suit was preferred in Februarv 2000 and rs pending smce over a decade The defendant No.1 was ex—parte Ordinarily a oraver seekina leave to amend the pleadina is not conSIdered at the second appellate stage unless the same is necessary for adiudication of the suit and that Without the said pleadinas the matter cannot be decided or that the amended pleadings are based on subsequent events lt appears that the amendment sought is after thoudht and is not bonafde The application under Order 6 Rule 17 of C P C preferred bv the l a therefore the prayer for amendment in the plaint at the stage of second appeal is rejected. (9) \ \ i challenging the TahSildar’s order dated 24/06/1993 and copies of the Khasra entries of the year 1973-74 to 1982-83 as we" a$ the Khasra entries of the year 1964-65 wherein possession of Devsingh the late husband of Sushiia Bai was recorded in column 12. in the Khasra entries of 1973-74 it is mentioned that Dev Singh is in possession of the iand since last 16 years i.e. from 1958-59 onwards. (10) Though: some of the documents tiled by the respondents No. 1 to 3 are certified copy of the Khasra entries, yet in View of the fact that the defendant No.1 has not submitted her written statement and has not adduced any evidence in the trial Court and thereafter has aiso remained ex—parte before the hrst appellate Court, the application for producing additional evidence deserves to be rejected. Even otherwise defendant No.1 has not at all stated as to why the documents could not be tiled before the trial Court. The only explanation offered is that the respondents No.1 to 3 were not party before the trial Court. however the said respondents being legal representatives of defendant No.1, would be bound by the acts and omissions of the original defendant No.1 and the said original defendant having remained ex-parte, the respondent No.1 to 3 can not be allowed to say that they were not a party before the trial Court. The respondents No. 1 to 3 have placed reliance on the judgment of Hon’ble Supreme Court in the matter of Jaipur Development Authority vs. Smt. Kailashwati Devi reported in A.I.R. 1997 SC 3243 to submit that prayer under Order 41 Rule 27 of C.P.C. cannot be rejected on the ground that the party moving the application has not adduced any evidence in the trial Court. . in the present case not only the defendant // No.1 has failed to adduce any evidence but the said defendant has not submitted any pleadings either and further that no averment has been made in the application that not withstanding the exercise of due r diligence: such evidence was not within his knowledge or could not: after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. in the absence of such avermentg which is a pre-condition for exercise of power under Order 41 Rule 27 of C.P.C., this Coun is not inclined to grant the said applications, consequently both applications tiled by the respondents No. 1 to 3 under Order 41 Rule 27 of C.P.C. are hereby rejected. (1 1) Now coming to substantial question of law, it needs to be seen that in para 2 of the plaint the plaintiff states that the land is recorded jointly in his name and in the name of his brother defendant No.2 Satyadev and further in para 3 that he has received the suit land in partition between himself and his brother defendant No.2. Thus, the only person who could have responded to the plea of partition was the defendant No.2 Satyadev Pandey. The suit was filed in February: 2000. Barely after two months i.e. in April 2000 Process Server informed that the defendant No2 has died about six months back. meaning thereby that on the date of tiling of the suitthe said defendant No.2 was already dead. instead of bringing on record the legal representatives of deceased defendant No.2, the plaintiff chose to delete his name presumably because by the said time the defendant No.1 was already declared ex-parte. lf there was no cloud on the title of the plaintiff; pleading and prayer regarding declaration of title could not have been made in plaint, however the fact of receiving the property in partition was required to be proved to seek a declaration which the plaintiff has failed to do as there is no evidence as to when the partition took place, what was the extent of property held by the family an what was the share allotted to the family and the deceased defendant (1 2) If: for the sake of argument it is considered that there was no cloud on the title and the relief for deciaration of possession was superfluous and should not have been made, then the suit in effect remains a suit for recovery of possession under Section 6 of the Specific Relief Act. however any such suit has to be preferred within six months of alleged dispossession. in the present case the order passed by the Tahsildar directing recording of name of defendant No.1 as the person who is in possession of the property was passed on 24/06/1993 and the present suit was preferred in the month of February 2000. Thus, for this reason also the suit filed by the plaintiff deserved dismissal. (13) In view of the above, the substantfal question of law is answered against the appellant. The judgment and decree passed by the Courts below are hereby affirmed. The appeal deserves to be and is hereby dismissed. Sdl E‘ Prashant kumar Mishra Judge