L’éi‘? ’ IN THE HIGH COURT OF JUDICATURE AT BILAspUR LCHHATTISGARH) s.A. No. "'5‘3/[2004 ml'e Rem”: SECOND'APPEAL U/S. 100 OF C.P.C. APPELLANTS / LAINTIFFs Bhuwan Sahu, S/o. Kawal Aged 32 years, 2. Hulas, S/o. Kawal, aged 28 years Both R/o. Village Chikhili Tahsil Dhamdha, District Durg (C.G.)‘ VERSUS RESPONDENTS Z Q’l. Uttam, S/o. Hira Mahar I KEFENDANTS Aged 29 years Rama, S/o. Pati‘r’am Mahar Aged 35 years, Pati Ram, S/o. Hagru Mahar Aged 6 5 years,‘ ‘aQ‘v No. 1 to 3 R/o. vill. Murmunda Lk \ \ a Tahsil and District Rajnandgaon / 4. State of Chhattisgarh Through the Collector Rajnandgaon (C.G.) AGAINST THE JUSGMENT AND DECREE DATED 12711.2003 PASSED. BY SHRI T.C. YADUfDISTRICT JUDGE RAJNANDGAON DISTRICT RAJNANDGAON IN CIVIL APPEAL NO. 385Al2001 PARTIES UTTAM AND OTHERS VERSUS BHUWAN AND OTHERS Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Second Appeal No.75 of 2004 Bhuwa Su and another n ah verSUS 1 Uttam and others ORDER Post for “*‘4-3-201 0 Sd/— Prash’ant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Justice Prashant Kumar Mishra Second AQQeal No.75 of 2004 W Aggellants ‘ Bhuwan Sahu and another verSUS Uttam and others Reshondentq . ... Present: , Shri Barag Kotecha with Shri Anand Shukla, counsel for the appellants. Shri N.P.Koshta, counsel for respondents No.1 to 3. No one appears for the State/respondent No.4. e Second Appeal ‘under Section 100 of the Coderof Civil Procedure ORDER (Passed on 04*“ March, 2010) The instant second appeal under Section 100 of the Code of Civil Procedure has been preferred 6y the plaintiffs, whose suit for . possession and damages was decreed by the trial Court, however, on appeal by respondents No.1, to 3/defendants No.1 to 3, the first appellate Court has allowed their appeal and consequently the suit filed by‘the plaintiffs stood dismissed. ‘ 2. The plaintiffs preferred a suit with respect to land bearing Khasra No.324 area 20 dismil on the pleadings that defendants No.1 to 3 have illegally recovered possession of the suit land and have raised construction of a house thereon. Defendants No.1 to 3, in their written i statement, denied the plaipt'allegations and stated that the plaintiffs were never in possession of the suit land, which was always in Tpossession of the father of defendant No.1 for last more than 31 years farm" M " and, thus, the plaintiffs’ suit is barred by limitation. It was stated in the written statement that Hira, the father of defendant No.1 had purchased land bearing Khasra No.784/3 from Raghunandan Das, son of I‘ndaldas by sale-deed dated 16-3-1966. After d'eath of Raghunandan Das, his son Virendra Das has effected transfer of this very‘land to the plaintiffs; which was re—numbered as Khasra No.324 during Chakbandi proceedings. Defendants No.1 to 3 raised plea of adverse possession in their written statement. 1 3. ‘The trial Court allowed the suit by judgment and decree dated 13-9-2001. On appeal by defendants No.1 to 3, the first appellate Court allowed the appeal and, thus, dismissed the suit preferred by the plaintiffs. . 4. In the first appellate Court, it was argued by defendants No.1 to 3 that the trial Court conducted the trial without framing proper issues and decided the suit without ordering for demarcation to verify the suit land and its khasra number, etc. The first appellate court found that the vendor of the earlier sale-deed, namely, Raghunandan Das, was the father of the vendor of the subsequent sale-deed, which was t executed by Virendra Das and both the sale—deeds were executed for the same land. The appellate Court also observed that the plaintiffs have not filed and exhibited the maintenance khasra of the land to prove their possession. After appreciating the statements of Shivnandan P.W.—2, UttamKumar D.W.-1 and lsmail Beg D.W.-2, the ‘ learned appellate Court found that on the basis of the principle of preponderance of probabilities, the evidence adduced by defendants No. 1 to 3 appear to be more convincing and, thus, found that the land of both the khasra numbers are same and due to Chakbandi proceedings, the land, earlier bearing Khasra No.784/3, is now Khasra No.324 and, therefore, the finding recorded by the trial Court for decreeing the suit was set aside by the first appellate Court. ' 5. j On perusal of record, it would appear that Chakbandi proceedings have taken place in the village. Ex.D—3 is a Panchnama (inquest) for the fact that defendants No.1 to 3 are in possession of land bearing Khasra No.3214 by constructing a house over the land for a t 25 years. EX.D—5 is a document reflecting the fact of Chakbandi in the village. a 6. It is settled law that in exercise of powers‘under Section 100 of the Code of Civil Procedure, the second appellate Court is not entitled to interfere with the finding of fact arrived at by the first appellate Court on the basis of appreciation of evidence. ln the present case, the first appellate Court, by applying the principle of preponderance of probabilities, has found that in view of long possession of defendants No.1 to 3 and that Hira, the father of defendant No.1 had purchased the land and was in possession for more than 31 years, it cannot be said that the said finding is perverse. 7. Even if other view is possible, this Court, in exercise of powers under Section 100 of the Code of Civil Procedure, is not entitled to re— appreciate the evidence and reach to a different conclusion. 8. The question as to what is a substantial question of law has \, been dealt with and pronounced in by the Hon’ble Supreme Court in l State Bank of India and others vs. S.N.Goyal, (2008) 8 SCC 92 in w l ~4, paragraph 13 of the report. Applying the said principle in the present case, this Court finds that no substantial question of law arises for determination in this appeal. The present second appeal, thus, fails and is hereby dismissed at the admission stage. /r /’ /, ‘ Sdl- Prash‘ant Kumar Mishra Judge Gopal (i