cr .<^! IN THE HIGH COURT OF JUDICATURE AT BILASPUR Second Appeal No. APPELLANTS: >' DEFENDANTS Of 2006 1. BRIJMOHAN DUA S/o SITA RAM aged about 58 years, resident of Gondpara Bilaspur, Tahsil and District Bilaspur (CG). 2 . SMT. CHANDRAKALI BAI W/o A.PRAKASH ^- aged about 50 years, resident of Jarhabhata Bilaspur, Tahsil and District Bilaspur (CG). VE RS U S RESPONDENTS .: 1.. Indian Church Council of Disciples of ( PLAINTIFFS ^'.t^ jSfl Christ, Through Secretary , Padari N.L.Soni, Jarahabhata, Bilaspur (CG). 2. United Church of Northem India Trust Association, registered Company, Registration No. 29/2, Registered Office Bombay, Through Attorney P.C.Singh, Bishop Jabalpur, Diocese Jabalpur, Madhya Pradesh. MEMORANDUM OF SECOND APPEAL UNDER SECTIOlTlOO OF THE CODE OF CTVIL PROCEDURE 1908 ^l^w^ ^y ..•'"Ly'if^''' /M^" XI-HC-78 C. A- ijo «ll*lc(>I9*TTO yxal .^lWlriy, S'ClWIS, 16RW3^ ^s-l _-.:. 3n^?TtRW(li«l3c1^) Wt200^ ERrai?s4tqipi?ff<ffet8 <lii»s;i'< a>ai^T3iA?t 3(i^?[Wifi!?rtiP ganairtsiB'^R ^EgitR^iftasn^CT .Shri 65 Agrawol, for the appsliants. or ^dwcate with Shri Kft Nair, counse Shri Alok Bakshi, ;SDonde on aamsssion Respondent No.l f possession of the suit ng' a house three rooms and the suit land and constr has. bsen descnbed in the is m possession ibly dispossessed him, Who are are ^usted from thesuit property wuld aqain take forcible some pe rsons, ther recovery of ^-^\- •ll'~'-_T- XI-HC-78 ^.A. . V. HI*ldiaFW^ <JCT| -^|<|lri4; um1wi<?, Rioi'dyM s&^ 31(^91 qaq»(ijcilgisi<g) W^200^, sii^nwRiif (raiSD^TBmtdt )r of respondent No.l, |»'ho in execution proceedings gotp^ssession over the suit Iso got some mov^able properties attached towards 1-ecovery of decretal amount, th^i ()ossession over al! the propertie^, subsequently in January, 1984 ^pellants took forcible possession of the suit p civil suit bearing No.37-A/91, bilft their tities he!d that th 8^nsR^rfS?Tan^?r -i. Appellant N6. 1 remainejd exparte. Ths suit No.229-A/76 »asdecreed on 28.3.1977 by 'esoonci Appeflant assai'iini roperty does not fc of suit property IS ^fossesswn thereof and are cultiva decided the suit v'sde Judg m Civil suit No.l2-A/200|2 * of the counci! has riqHt ibWfri'41'1 tfWriT<f Is'cl •<Riitsn ^gif^TaiitST and also fiied it estabiished •ty' befongs to suitlon variou$ grounds ^espondent No.l, but Ifieir ancestrol property \sng it. they are the and are in on record, 3rd Civil Judge C!ass-I Inent and decree dated 15.04.2005 i|2. Learned Court decided that jt to institute the suit, the issue of 'lease conditions are ooverned -l^l 1 w 1 \; ! fm XI-HC-78 idCTi<^i<ii««,y-rfl<(i<ic, Rttitiy'i ^_4___^_ ^ . ^ ^ 4, *iif«i^*ir<i» SIT^STlR^ (yil^cl.s) ^Ft200^, siTSOTiprf^ito ?iaiT3IR?Ta>*li<n licaTa, t in Civi! Sui iance of iease amount. On 11.1 rooms, one h4 propert/ of Civil si^ possession and Appeflants, feeling aggrievea', No.l6-A/05. 9th Additional Dfetrict difecres appeal vjde judgmsnt and findings recorded by the tr evidence and documents on recor is in consonance wlth evide; FeeEing aggrieved by thoit Second appeal has been filed by the CPC stating that fpllowing su| in the appeal: <ni<itn<I1iii*inl''f|s*cl '(Rtt<;i'( ^arf^Tan^?! brther held that respondent No.l •t No.229-A/76 for possessipn and P.1983, appeliant No.l un-authorisedly luse and some vacant land which was !it No.229-A/76. TTierefore, the suit |jamage in favour of respondent Na.l. Fi!ed oui appea! bearing civil appeal Judge (FTC) Bilaspur decided se dated 26.04.2006 hoiding that ial Court are in accordouice with the d. The judgment and decree of iower ice and jaw. Therefore,ihe dismissed 'mpugned judgment and decree, thjs the appellants under Section 100 sstantial questions of IVJ OT are involyed 1) ' Whether the tearned ap^etlate Court and iower Court was Justified in decreeing the ^uit, when case wasnot proved? ^ XI-HC-78 vjwi-ywiri^, t»-nl'«<is,R«iti3'< >?.ft: (^ ^ 4.4 qpTOT^'n^ ......••—• W1200X sn^?rv (^tg^f) 3II^»T!RrR') aaTT3ii^CT**<i* ^aKR^ftasn^i i *Wfd41-1*l|t|c»Ti|fl«^l'(luiiyt ^aif^ran^n 3) Whether,,lea'fned appettanf in hotding only issue No.2 not the entire suit? Whether the appellate justifjed in not hoiding th4 5uit No.229-A/76 os not !fi when the tenancy was not null and yoid ? Whether the learned appe justified in not framing w\ of the decr.ee and judgme>| is specially raised in para-; Court and tricl Court were justified and 3 as barred by resjudicdta and '.our-t as well as tria! Court were / decree and judgment passed in Civi! linding on the appellont - defendants determined according to law and was !ate Court as well as trial Court were ion of bfnding nature ;.229-A/76, when it JUSTITISQ iH FS' 03.03.2005, which was affecting the dscision of t] Learned counsel for the A/1976 was nui •ity of suit void and y was dif t in Civil Suit of written late Court as well as •I'rial Court was allow the vita! ijng to the \& case? appellomts contended that earlier Civil Court in civil suit ^vas not binding, on appell erent from the property ir I'flS ^l ET- \lw|-«141<A't|,wnl<M<l<s,firtl'MIi'< «ii*toia?;(n<p sn^siiraq? ('i^ig^) W^,200 aiiiwpiR'ii* ?CT3!I^?r»l)*licp s^nwtif&asn^n -s CivH Suit No. 229 A/1976 ond + issues to decide -ttie rea! controv< courts below Secretary of respondent No.l ha property in dispute in Civil Suit concurrently held that the jp right to institute the suit property, No. 229-A/1976 <md the instant suit are not different. Kespondent t^).l in execution of the decree passed of the suit property 3S, evi Courts below oind their findings, Appellant No. 1 by obtained suit propert^ csrtain conditlons but 229-A/1976 aqainst -tl <hl«fd4)''lIWciTit'fs'^1'tlutt^l't ^ail^Tan^CT he trial court did ^rsy between the par in CEvi! Suit No. 229-A/76 and thereafter appeilants have t^ken possession of a part of the sarne un-authorisedly. TTierefore, th< Courts for possession. suit has been decreed by both the nce ond dispute raised before the foliowing are the ^xecuting a registered iease deed t, on lease trom re; Iviolated those conditions therefore, respondent No. 1 .brou^ht a civi! suit bearing Civii Suit No. he appeltant No. l for possession. XI-HC-78 ^Sv^ •^iiwvw, u>-rfl<H<i<s, R<7)il<-iy< HiHirti^'n^ an^Tmft'fi* fantCT**) \; 3TI^?r IWP (yii^qtg) ^200 >. 1 remainejj exparte therefore, exparte decree dated 23.3.1977 was (^issed against him. Appellant No. ! Prder 9 Ru!e 13 of the Code of Civil {iside the sxparte decree but could reached to its finality and to restore possession to pursuant to warrant of possession ven to resoor Procedure for setf-ing not succeed. TTie illant No. 1 was respondent 2) In execution the suit property on 5.10.19T7. 3) Admittediy, whenthe ir in possession of the swi, held that appellants i i^u. i. pleadings by appellant^ dated 23.12.3 to prove that land bear to thern instead Couri befdngs to Missiontrj^ 'nKlTe'yli iifcil'4"fs'<l 'iRt'tcri ^3)f^T3II^ST stant suit was fited, appetlants were tand and.both the Courts below have unauthforisedly dispossessed the another civil suit bearing Civil 5uit No. 37-A/91, lp96, it is clear that appeliant failed Khasra No. 85/1 and 65/1 beiongs has held that the said property ^ lk\ \ viT5q»<liiiliO*i,t»'nl'«<i<B,Rttti'«y *TPR$T^H€F 3n^?rw(S*)i* vwv 3iTEt?i^gEp(igifgs(s) ^200 toliowing 1-wo questions St ' possession as a 2) Whether resp^ Bpth the questions ar^ bo-th the courts betow gaye whether a decree passed in ^ to its finality' agamst appellaht matter of the instant suit, Civi! Court till declared nuli ohd against the person agttinst •A|hom by Courts betow accordance wi+h !dw. The su in the instant suit. After going throu9h: advanced.by. the oppellants, 'pliio'Rifliifflli'^ffs'cl 'ilui'tSl'i iRsrf^nan^ai he Court was required to decide only i; 1 received the property in •esult of execution of decree? ndent No. 1 was in possession and was •cibtv disDossessed bv the aooellants? ^ question of facts and not of Eaw c^ncurrent findings ageinst the appeliants, |:ivil suit No. 229-A/1976 though reached No. 1 is binding or not is not a sjbject iven otherwise such a decree passed by void by o. competent court are binding it has been passed. To resolve the ties have been framed and have been appreciating evidence on racord ond in j^gssted substantia! question of law is not ,the complete record and argument I am of the opinion that no substantial SP/FS/2005-20,000 .feffo.y1 ^. ^•BEi.-«iO)rt<t;u^<(l<l^,R|ciK4§<< .^ *lt*t<c»l 3n^?Tqsrar(^cifgcRs) W^200 3II^9IWR'lt<B trai3II^?Irit*fjtb '4 •C7 ?Rii8R^rfi?t sn^n a_l question of law is involved in and accordingly it is dismissejd jn iimine [C.)P.No.846/2006 SP/FS/2005-20,000 'p|<ifnqli*fi*f«Tit"ls'd'<(uit<(it i&af^Tsn^r •ves to be cfismissed at •t+iis motion staae Sd/- V.K.Shnvastava Judge