r- \{. ^ SnglaBench IN THE HIGH COURT JUDICATURE AT BILASPUR SECOND APPEAL N0. 3^4 OF 2006 APPELLANTS: (Defendants No.l & 2) •^^ ^••^:"^ -—-...^^'^ RESPONDENTS: Plaintiff ^m^ .%^ ^- ^" ^w •^T" ^' ^••' Defendant No.3 0^\A^ ^^" ^. )"VA^V^ * /^*,;^ ^f _ / ""' ^^ :'*v' G^^ J^- r' J^" ^' 6V^ Vs 1. Bhukan Kurmi, aged about 61 years, son of Late Oeena Kurmi, resident of Village Kurru, Tehsil Abhanpur, District Raipur. 2. Naresh, son of Bhukan Kurmi, resident of Village Kurru, Tehsil Abhanpur, District Raipur. ly/Smt. Gajra Bai, aged 9t about 45 years, widow of Late Buddhu Kurmi and daughter of Late Keju Ram Verma, presently residing at Railway Colony, Maroda, Bhilai, Tehsil <& District Durg (C.G.) /2. State of Chhattisgarh, through the Collector, Raipur. Civii Suit valued at Rs.860/- & court fee affixed Rs.100/- Fir^t Appeal valued at Rs.860/- Court fee affixed was Rs.lOoA- This appeal also valued at Rs.8607- Court fee affixed Rs.100/- \^' APPEAL UNOER SECTION 100 OF CO&E OF CIVIL PROCEDURE. 1908 XI-HC-78 3:n^T^Tf<^Jch cCT'3TI^T$b^i<=b ^N» k. ^i*i^ra»HT^» ^^T^TRTRTq', ^T{1.^^(o, fc)diy^< ••S.'i.^.^?/...^2006 ^ t?T ^l5|ch (^cii^q^) ^RTTW ^f5cT 3TT^T -I- chi^F<n<!TlTi ^i^crtT^*tec^'<r3i<-<-i< ^3Tf^T3TT^T 30/11/2006 Appellants by Shri B.P. Sh^rma, Advocate. Respondent No.1 by Shri l^anoj Paranjape, Advocate. Respondent No.2/State by Heard on admission. Being aggrieved by the Appeals No.37-A/2005 and 69-A defendants/appellants have prefe Brief facts are that Sr^ instituted a Civil Suit No. 45-A/l Shri Sanjay Shyam Agrawal, G.A. Ijudgment and decree passed in Civil Ay2005 by the District Judge, Raipur, the 1-red this second appeal. it.Gajra Bai, respondent No.l/plaintiff )005 against the appellants/defendants No.1 & 2 and the State of Chh^ttisgarh for declaration that she is the owner ofthe agricultural lands ii|i area 3 acres situated in village Kurru, Patwari Halka No.141 by virti 03.07.1974 executed by the app^llant No.l-Bhukan Kurmi in her favour, for possession of the aforesaid lai the defendants/appellants No.1 & >nd lie of a registered sale deed dated ids and for permanent injunction against 2. The learned 2"° Civil Jucfee CJass-11, Raipur, vide judgment and decree dated 30.07.2005 recor<| respondent/plaintiff that she was| the registered sale deed dated 03| appellant No.1 herein; However,| fled a finding of fact in favour of the the owner of the suit lands by virtue of .07.1974 executed by Bhukan Kurmi, the on a finding that the suit was barred by limitation under Article 65 of the|Limitation Act, 1961, the learned lower Court dismissed the suit. The ||>laintifF/respondent No.1 Smt. Gajra Bai XI-HC-78 3^T <<ii^i<n^, ^Tn.<-t4i(o, [®i<ni^^< •^^ *i PI^TT $b^ict> ^ 200 3<l^l ^5ich (<i^I^<si^T) 3TT^T^Tf^TT^ cTSTT3n^T$b^icb 1 ^cTTW ^TfgcT 3TT^?T App^al preferred an appeal (Civil judgment. The defendants/appells Appeal No. 69-A of 2005) againsl learned lower Court. Vide Judgrr learned District Judge dismissed affirming the finding of fact record Bai had acquired title over the suit by the appellant No.l/defendan learned District Judge allowed Civ the plaintiff/respondent No.l-Gajr within limitation since it was for p< within limitation of 12 years Act, 1963, which would start to possession of Bhukan Kurmi this view of the matter, there is ^ both the Courts below that Smt. Q acquired title over the suit lands b^ executed by Bhukan Kurmi. the presc|ribed becadne It was urged by Shri B| appellants/defendants that the <|> determination is as to whether both the burden of proof of the regist^red having been executed by Bhukan) was made to paragraph 12 of th^ was observed that the defendants on Ex.p.1 examined by a Finger Pt cbi1M?<n41yi WR^ff ^* te^ <Fii^i< ^i3:ri:^T3:n^T No. 37-A/2005) against the said ints also preferred a cross-appeal (Civil the aforesaid finding recorded by the lent and decree dated 10.05.2006, the cross-appeal No.69-A of 2005 while ed by the lower Court that Smt. Gajra lands by virtue of a sale deed executed -Bhukan Kurmi on 03.07.1974. The Appeal No. 37-A of 2005 preferred by a Bai while holding that the suit was )ssession on the basis of title and was under Article 65 of the Limitation commence from the date when the adverse to that of Smt. Gajra Bai. In concurrent finding of fact recorded by iajra Bai, respondent No.l/plaintiff, had virtue of a sale deed dated 03.07.1974 .P.8harma, learned counsel for the >nly question of law that arises for the Courts below were right in shifting sale deed dated 03.07.1974, not Kurmi, on the defendants. Reference judgment of the trial Court wherein it ought to have got the thumb impression int Expert, which it had failed to do. No XI-HC-78 3TT^T^T^I+ ^TT3:n^T9h^l<=t) hk. 7S[ ^ww^, w^ww, {s)dl^^< L5 +11+1^11 «»*11<sb ^200 311^1 q^ch (^c(t^cj<^l£T) ?^TTW: ^T ^TT^T <=hi^F<n41-i <Hi^<viT^'*teT:^<(^«i< ^3Tf^TT3Tf^T other point was urged l^y the learned counsel for the appellants/defendants in this app^al. On the other hand, Shri Manoj Paranjape, learned counsel for respondent No.l/plaintiff urged tl|iat there was a concurrent finding offact recorded by both the Courts bel<)w that Smt. Gajra Bai had acquired title over the suit lands by virtue of a Bhukan Kurmi in favour of Smt| registered sale deed Ex.p.1 executed by Gajra Bai on 03.07.1974. It was also urged that the plaintiff had ptoduced the primary evidence i.e. the registered sale deed Ex.P.1 and| had not only examined herself but had also examined Harish Chandra) P.W.2 to prove the signatures of the attesting witness Lainuram on th|e sale deed. In this manner, the plaintiff had discharged its burden. Bes|ides, the plaintiff had also proved Ex.p.3, a sale-deed executed by Bhukar^ Kurmi in favour of Nathu on 09.03.1962 wherein Bhukan had affixed lis thumb impression. It was for the defendants/appellants to get tl^e thumb impression of Bhukan Kurmi examined by a Finger Print Expe|rt and to prove such opinion in the Lower Court. It was urged that np sub^tantial question of law was thus involved in the second appeal which wa^ liable to be dismissed at the stage of admission. Having heard rival contenlpons, 1 have perused the record. There is t a concurrent finding of fact reco| Gajra Bai acquired title over the | 03.07.1974 executed by Bhukarl Gajra Bai had produced and rded by both the Courts below that Smt. suit lands by virtue of a sale deed dated Kurmi in her favour. The piaintiff Smt. proved the primary evidence viz. the registered sale deed itself by e^amining herself as also Harish Chan<,lra XI-HC-78 *ir<«:<TT»>*1|ch TacT rqi^icl^, ^TH<-I^^, tct<rti<-i^< y^ ^^^/o^ ^200 t?r^ra? (^cii^Qi^) 3TT^r^rf^w craTT3TT^T5h^icb ^ ^-]/)! csr <- ^w ^^ ^RTTW ^rf?cT 3T^T -l^- P.W.2 to prove the signatures of th^ plaintiff had discharged its burder^ Ex.P.1. The defendants made no Kurmi examined by a Finger Print | evidence before the Court. In this t by both the Courts below being a fi( law is involved in this second appe^il stage of admission. attesting witness. In this manner, the of proving the registered sale deed ^fforts to get the finger print of Bhukan |Expert and to seek and produce such 1/iew ofthe matter, the finding recorded <iding of fact, no substantial question of I, which is liable to be dismissed at the Consequently, this Second| admission. M.C.P.No.1241of200|6 stay ordered on 07.08.2006 stands| <=t)i^f^i41Ti ^i^^T^:teT^<r3i«i< ^3lRi^ 3TT^?T Appeal is dismissed at the stage of for stay is also disposed of. Interim vacated. Sd/- Dilip Raosaheb Deshmukh Judge P.T.O.