^/ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR ss S.A. N0, loa /2011 lEfll®IBSili APPELLANT DEFENDANT N0.1 RESPONDENTS ^PLAINTIFF ^ '^y. \ ^ ^,.^ '^ ^ Sitaram Agrawal, S/o. late Vamanlal Agrawal, aged about 54 years, R/o. Station Road, Near Thomas Hospital, Mahasamund, Tahsil & District Mahasamund (C.G.) VERSUS i]/ Radheshyam Agrawal, S/o. late Vamanlal Agrawal, aged about 49 years, R/o. Bazar Ward, Mahasamund, District Mahasamund (C.G.) Nagar Palika Parishad, Mahasamund, through: Chief Municipal Officer, Mahasamund, District Mahasamund (C.G.) ^y' °"SECOND APPEAL UNDER SECTION 100 OF CrVTL PROCEDURE CODE r ^ ^... ?s ^ HIGH COUST OF CHHATTISGARH AT BILASPUR SECOND APPEAL No. 109 QF 2011 APPELLANT Sitaram Agrawal Versus RESPONDENTS Radheshyam another SB:- HON'BLB SHRI N.K. AGARWAL. J PRBSBNT:-Shri Manoj Paranjpe, Advocate, for the appellant. Shri Shree Kumar Agrawal, Sr. Advocate, with Ku. Gupta, Advocate for the State. ORAL ORDER (6-5-2011) 1. Heard on admission. 2. This is defendant's second appeal against the judgment and decree dated 5-3-201 1 passed by the Ist Additional District Judge, Mahasamund in Civil Appeal No. 97- A/2010 whereby and wheretuider, defendant's appeal preferred against fhe judgment and decree dated 2-12- 2009 passed in C.S. No. 2-A/2009 is dismissed affirmmg fhe judgment and decree passed by fhe trial Court. 3. Facts of fhe case in brief are as under :- i. PlaintifFs instituted a suit against the defendants for possession of shop No. 8/20 area 15 ft x 25 ft. total 375 sq.ft. situated at Indira Market, Mahasamund inter alia on the ground, Vainanlal Agrawal, fafher of plamtiff has four sons including plaintiff and fhe defendant No. 1. In the lifetime, Vamanlal orally partitioned his property in the year 1991 and thereafter acknowledgement ofpartition was executed on 15-7-2002 in front oftivo witnesses, was also accepted by all his sons. After death of Vamarital Agrawal, an agreement was also executed on 29-8-2003 between his sons by which they have accepted the above partition after resolving all the disputes between them. As per partition, Shop No. 8/20 was aflotted to the plaintifi" ahd he is als'o paying rent to Nagar Palika Parishad. '-"3!l%i.-., '•(?•&. \ I 6..^Sa&>, Defendant witlTLOUt rhyme or reasons entered into possession ol' suit shop. Plauitiff sent a notice on 22-8- 2007 which was refused to be accepted by the defendant. Hence fhe suit was filed by fhe plainttEF for possession of suit shop. ii. The defendant opposed the suit, deoied plaint averment and stated fhat as possession of godown and residence was not handed over to him as per agreement and defendant is ui possession of the suit shop for last 17-18 years, also paying its electridty bfll, telephone bill and rent, ete. and therefore, unless physical possession of shop situated at Bazar Ward is handed over to him, he wiU not vacate fhe suit shop. iii. Leamed Tribunal, on a close scrutiny of the evidence led, material placed and submissions made, finding inter alia: the plaintiff obtained title over Shop No. 8/20 measurinj 15 x 25 total 375 sq.ft. sitnated at Indira Market, Mahasamund in family partition; the defendant No. 1 Seetaram is in possession of fhe suit shop without any right; and plaintiff is entifled for possession of suit shop, and decreed the suit. iv. Leamed first appeUate Court on re-appreciation of fhe entire evidence, dismissed fhe appeal and afiirmed the finding of the trial Court. 4. I have heard leamed counsel for the appellaat and perused the record of both fhe Courts below. As per family partition, fhe suit shop feU in the share of plain.tiff, was admitted by the defendant. There is no contract between the parties aufhorizing defendant No. 1 to retain. possession over the suit shop till other disputes between them are resolved. Learned counsel for the appeUant could not pomt out any illegality, absiirdity or material irregulanly tn the conci-urent finding recorded by both the courts below, and tn the considered opinion of this Court, 6. 7. no substantial question of law arises for determination in this appeal. This court caiuiot proceed to hear a second appeal without fhere being any substantial question of law involved in the appeal. Existence of substantial question of law is fhe sine-qua-non for the exercise of the jurisdiction iinder the amended Section 100 of the Code. Leamed counsel appearing for fhe appellants falled to point out any substantial question of law which may arise for detennination in the ^ase. In the absence of any substantial question of law arises for determination of this Court, fhis Court has no option but to dismiss the appeal. Therefore, the appeal being devoid of substance deserves to be and is hereby dismissed. No order as to costs. Sd/- N.K. Agarwal Judce ^- 1