% @w HIGH COURT OF CHHATTISGARH: BILASPUR 5.3. HON'BLE SHRI VIJ'AV KUMAR SHRIVASTAVA, J 2) Anil Singh, 5/0 La're Pmsnnnu Ram, Aged abau'r 60 year-s, R/o Village Baneya, PS & Tnh Si'rapur, Disf Surguja, (CG) 3) Chhabilsai, 5/0 Lafe Pmsanna Ram, Aged abouf 50 years, R/o Village Kerju, PS & Tah Simpur, Dis? Surguja, (CG) 4) Badsai, S/o Lafe Pmsanna Ram, Aged abouf 46 years, R/o Village Farad Bahar, Tah Sifapur, Disf Surguja, (C6) 5) Chawar Sal, 5/0 La‘re Ramsai, aged about 35 years 6) Nllambar, 5/0 La‘l’e Ramsai, aged abouf 25 years Bo'rh appellanfs No.5 & 6 are R/o Village Kerju, Thsil Si‘rapur, - Dislf-Surguja (CG). .z s Versus i i Respondenfs : 1) Girvar, 5/0 Hawalsai, Aged Plaimiffs abou‘r 5O years 2) Hirdan, 5/0 Hawalsai, Aged abou‘l' 40 years 3) Sm‘l' Devmal’i, Wd/o Hawalsai (Dead) 4) Hanuman Sai, 5/0 Laje Jagansai (Dead) / K MISCELLANEOUS APPEAL NOA7O7 OF 2005 Ijppelianfs : 1) Palsai, 5/0 Sr-i Gyansni 60nd, Defendnn‘rs aged abouT 45 years, R70 Village Kerju, PS & Tab Si‘mpur, Dis‘f Surguja (CG) 5) Shycmsunder, Aged abom 65 year's, S/o Lafe Jugansai 6) ‘Dheersai, S/o Lafe Jagansai Aged abou‘l’ 60 years E All residen’rs of Village Kerju, Tahsil Sifapur, Dis? Surguja (C6) Respondenf Défendam 7) Sfa‘re of Chha'rfisgarh Th rough 1‘he Coiiecfor, Surguju (CG) i PR§$ENT: ‘ 5hri Manoj Pnmnjape, counsel for +he appellanfs. .Shri Sonjay Pa'rel, Counsel for responden‘rs 1 +0 6. Shri JD ‘Bajpai, Governmen‘r Advoca're for 'rhe S'm'l'e / respondent No.7. ORDER Qa_ssed on 02‘01 .20_0__6) This appeal has been directed ugnins‘r The Judgmen? and decree dafed 24.01.2005 passed by The Firsf Addi‘rional Districf Judge, Ambikapur, Disfricf Surguja, in Civil Appeal No.25-A/2003 whereby fhe judgmen‘r and decree passed by ‘rhe trial Coarf has been se'l' aside and fhe case has been remanded 1’0 'lhe irial Court 2) The responden‘l's/Plain‘liff filed a suii‘ for declarafion and permanen'l’ injunc‘l’ioh: averring fha‘l', af fhe Time of se't‘l’lemenf The sui‘l' land was seffled' and recorded in fhe name of Jagansai, who remained in possession of 1he sui'r land fill his deafh. Affer his dea'rh, respondenfs/plaini‘iffs being +he heirsiof Jagansai weireirecorded @ ‘ri'He holders in fhe reccrd of righfs and are in possession of +he sui+ land. Very offen, They used To provide 'i'he sui'l’ land 1'0 The uppellan'fs for fheir liveiihood. The appellanfs Taking advnn‘mge of Vihai. go‘i 'l'heir names recorded in revenue records along wifh The names of respondents No.1 To 6 and filed an applicaTion for parTiTion before Tahsildar, SiTapur. RespondenTs/plainTiffs raised The quesTion of TiTle, as a resulT Thereof, The Revenue Cour'l' sTayed iTs proceeding and ”Th‘ereafTer respondenTs/plainTiffs To esTablish Their righTs filed civil suiT. The appellanTs/defendanTs denied The claim of respondenTs/plaintiffs. They pleaded ThaT The suiT is Time barred. The suiT land was joinT family properTy. In The year 1962, a parTiTion Took place and since Then They are in possession of The suiT land which came in Their share. 3) BoTh The parTies adduced Their evidence in supporT of Their pleadings. Learned Trial CourT afTer evaluaTing The evidence, decided The issues in favour of respondenTs/plainTiffs buT on The ground ThaT They have noT claimed possession, hencesThe suiT is noT mainTainable, dismissed The same. Aggrieved wiTh ThaT judgmenT and decree, respondenTs/plainTiffs preferred an appeal and during The I pendency of ThaT appeal, They filed an applicaTion under Order 6 Rule 17 of The CPC for amendmenT, seeking possession of The suiT land and also filed anoTher applicaTion under Order 41 Rule 27 of The CPC for permission To produce somedggumgisiw t .z 4) Learned Firs1' AppeHa're Court affer hearing bofh The par'fies and Taking info considera'fion The pleadings of bofh 'fhe par-Ties, heid 'l'haf far deciding the amendmen‘l' applicniion i1' is necessary To provide oppor-runi'ry To boih The parTies To adduce Their evidence. Therefore, wiTh various direcTions, remanded The suiT To The Trial CourT. The Trial CourT, wiThouT affording opporTuniTy To if The parTies' To adduce Their evidence, vide order daTed 02.09.1993 de‘dided The amendmenT applicaTion. By ThaT order, learned Trial CourT held ThaT The amendmenT applicaTion whereby resToraTion of possession has been soughT is barred under ArTicle 65 of The LimiTaTion AcT, Therefore, dismissed The applicaTion. On The some day, learned Trial CourT dismissed The suiT holding ThaT The suiT is Time barred vide iTs judgmenT and decree daTed 02.09.1993. Being aggrieved wiTh ThaT judgmenT and decree, The plainTiff / appellanTs filed an appeal which has been regisTered as Civil Appeal No.25-A/03. Learned FirsT AddiTional DisTricT Judge Ambikapur ' afTer hearing .boTh The parTies held ThaT The judgmenT and decree w. ‘ passed by The Trial CourT, as well The order passed by The Trial CourT on amendmenT applicaTion and on applicaTion for admission of documenTs is erroneous Therefore, remanded The suiT vide impugned judgmenT and decree vgith a direcTion ThaT for consideraTion of amendmenT applicaTion boTh The parTies should be allowed To adduce evidence and ThereafTer in accordance wiTh earlier remand order The . suiT shall be disposed of. 5) 5 Respondenfs’Iplainfiffs’ uvermen'i' is fha'r They are 'H‘l'le holders and are in possession of 'Hm sui'r land and fmm Time To fime, They allowed lhe oppellan'rs 1'0 cul‘l'iva're fhe sui'l' land for Their livelihood, whereas, The oppellnnTs' pleading is ThaT parTiTion Took place in The year 1962 and The suiT land falls in Their share and since Then, They are in possession of The suiT land as owner Thereof. The respondenTs/plainfiffs who have earlier noT sough'l' The relief of possession as a resulT of which Their suiT has been dismissed, have filed The insTanT applicaTion for amendmenT and according To seTTled law ifisuch Type‘ of amendmenT is Time barred, in ThaT case The applicaTion cannoT be allowed. 6) In The insTanT case, wheTher The desired amendmenT is Time barred or noT is noT a maTTer of law alone, buT also is a maTTer of facTs. Therefore, wiThouT evidence, wheTher To allow or dis-allow The . applicaTion could noT be deTermined and iniTially 15* AppellaTe CourT also, Taking inTo accounT The said facT, remanded The case expressing iTs opinion for Taking evidence To decide The amendmenT applicaTion buT Trial CourT did noT care To comply wiTh The said order and wiThouT providing opporTuniTy To The parTies To adduce Their evidence decided The amendmenT applicaTion and dismissed The same. 7) The judgmenT and decree of The Trial CourT is passed in violaTion of The earlier famand order passed byThe 1st AppellaTe CourT, Therefore, vide impugned judgmenT and decree, learned 1“ AppellaTe CourT righTly farTher remanded The case To The Trial CourT s for deciding The applicafions and sui'r in accordance wi‘rh 'l’he enrlier remand order passed by fhe 1g Appellate Cour? affer providing opporfuni‘iy To The par-ries 1'0 adduce fheir evidence. G 8) I um of 'rhe opinion +ha+ vide impugned judgmen'f and decree, learned 15’ Appellafe Court has righfly passed The order re'manding fhe case back +0 fhe Trial CourT, Therefore, The same does noT call for any inTerference. 9) g . In The resulT', The appeal is liable To be dismissed and iT is accordingly dismissed. ConsequenTly, M.(CZ)P.No.872/O5 disposed of. e ParTies To bear Their own cosTs. Sdl- V V.K. Shr'wasmva padma \ we: l 7 Q99