2 AA"1@;^; r," • -. ®g2pl4il;fc,i-r.'.Kj,^ su^iSs .IN.THE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS PLAD4TIFFS Second Aupeal No^^. / 2007 1. Ghasiram s/o Mohanlal --- aged about 52 years head ofthe Hindu Undevided Family consisting offour brothers and widow mother ^ 2. Babulal s/o Sunderlal aged about 65 years '^'^3. Mewalal s/o Haraprasad aged about 59 years representing as the Head of H.U.F. which consists ofBrother's widow Shanti Bai, son Chandradhar, Daughter Ganga Bai All of them by caste-Brahmin residents of village-Bodari, Tehsil - Bilha, Dist. Bilaspur VERSUS Haraprasad s/o Motilal aged about 48 years, by caste - Dhuri resident ofvillage - Bodari, Tehsil-Bilha Dist. Bilaspur Jagdish Prasad s/o Jugal Prasad Satnami resident ofvillage-Dhodki, Tehsil-Bilha Dist. Bilaspur RESPONDENTS: 1. DEFENDANTS 2. 3. Abdul Hussain s/o Shakir Hussain Resident ofKhaparganj Tehsil and Dist. Bilaspur HIGH COURT OF CHHATTRGARH AT BtLAStHjR SinaleBench: Hon'bte Shri Justice Prashant Kunar Mishra Second Apoeal No. 412 of 2007 Ghasiram and others Versus Harprasad and others Second Anoeal No. 2SO of 2007 Har Prasad and others Varsu® Ghansiram and others ORDER Postlw 0,1-08-2010. Sd/- Prashant Kumar Mishra Judge -^^ ?J "N. MGH COURT OF CMHATnSGARH AT BMJ^PUR Sinote Bench: Hon'bte St»iJusfice Prashairt Ktuaar MJdura APPELLAN_TS RESPQNDENTS Second Am d NoA12 / 2007 Ghasaram and othere VKSUS Harprasad and othera. Shri S.L. Kurmi, cwfftsel torthe ap(»llante. Shri F.S. Khare, counsd for the respondwrts. APPELLANTS RESPONDENTS Second Appeal No. WO / 2007 Har Praead and others Vwss Gtan^am and oUias. Shri F.S. Miare, counsel fw Uie appdlante. Shri S.L. Kurmi, counsd !w the respCTudeirts. SECONO APPEAL UMOER SECTION 100 OF THE CODE OF CIVtt. niOCEDUFE ORDER (0.08.2010) By Uiis common order, Second Appeal No. 412/07 aKlSecond Appeal No. 2SOIQ7 are disposed of. Both the a{yeate arise otrt of common judgment and decree passed by Uie firet an>dlale Court <»» 28-03-2307 whwrfi In tum arose out of the juc^mait SBKI decree passed bythe trial Court on 1904-2004. (2) The appeltants of Second Appeal No. 41»07ar? tt»e^laintifls and appellants of Second Appral No. 2BOIQ7 are the ddendants in tte suit. (3) The plaintiffe preferred ttre suft fbr declaraMon, pwmanent irfunction as ateo for mandatory injuncUon to daim thst the judgment aral ctecree dated 04-10-1993 passed in Chnl Suit No. 7-A/92 is n<rt bindh^i upon them and that the transfer of subject tank made by the d^eralant '^ No.1 in favwir of d^aidants No.2 and 3 fe ateo nrt bireKng on them. ^' .?& .t€'s^ 2.— They also prayed fer declaration that the sutt tank belon^ to Uiar joint family and they en-e m possesaon aral that the detCTdarts be r^elned from interfering in their po^ession. According to Uie plamtifls theff fathers were real brothere bea^ decenderts of Heeralal. It wa®^tated that though the name of the ferther of plaintiff No. 3 Mwwalal ws®atep Harprasad tait they are Brahmans and the defendant No. 1 Har Prasad is rart related to them as he is by crete Dhuri. PteinUffe' feunHy owned one tank bearti^ Khssra No. 82 which was later on chat^ped to Khasra No. 75 during Bandoba^. Originally the tank was havii^ area of 1 .48 acres but on account of some land haviig been ecquired by the St^e Govemment ttie present area of the tank is 1.54 sctes. (4) It was further stated in the ptaint (hat ttw defendEBit No. 1 colluded wtth the revenue snithorUies and got initiated proceedin^ for removal of encroachment s©ainsthim. The defendant No.1 (ttereafter preferred a suit bearing CivU Suft No. 7-A/92 by tsfcii^ benefit of tns name (Har Prasad) and ^rowing the ancestore of the plaintiffe reim^y Mohan Lal as his ancestore. (n the sakl suit an ex-parte judgment and (tecree was passed in favour of defendant No.1 whk* was oUained by Wm in a fraudutent manner and has thereafter succeeded in recordra his name m Vne revenue record. (5) The defendants denied <he pteunt aBegations and stated that the (anK belong to the forefathers of defCTdant No.1 and as such his famUy was in posses^)n of the tsnk for more than 50 yeare aml have perf^cted thar title by adverse poss^ston. It was also stated by defendart No.1 that the juc^ment suid decree psssed in the Civil Suil he®becpme final. It \^ was also stated by ttie defendants that ance a case for ranoval of encroachment by him was iniUated by the State Govemment and thereafter in his suit ^fainst the State Govemment a decree of dedaration of Utte on the basis of adverse po^essiw he®been passed against tlw State Govemment, the (M-esent suit is not mamtoinable. (6) The trial Cmirt partlydecreed the fiwt after recniHr®the foUowii^ findii^s:- (t) The suit fand is a tank. Eariier V Khssra Number of the suit tank was 82 which was changed s®Khasra No. 75 dure^ consoUdation proceedmg m 1939-40. (ui) Thesuittandb^ongstottieancestorscrftheplaintiffe. (iv) The plaintifts are not ttie Bhumiawami of the land and are not in possession. (v) The name of ttw grand father of deteralant No.1 was Maksudan @ Sudarehan and not Mohan Lal. (vi) The suit tank was Govemmait tank^ shown in Ex. P/1. (vii) The suit tenk WEB Govemment tank hawig bwn vested in Govemmert undw the provisiore of CftftatKNyarft A&trfWon of propwty WgMs fEstates, Maftats, Affiaiated Lamfe^ Act, 19W and evai if the defendant No.1 was an encroacher he should have first instituted an actton under Sectiw 57 of the ChhatUsgarh Land Revenue Code. (viii) The defendant No.1 coltuded wtth the revenue authoriti and gd iniUated proceedings for removal of awroachment. R^ying <m judgment of the Hgh Court in Starfe ofM.P, VSs. SouWiagya Singft ancf anoffter reported m 19 Remnue Hlmay 419 it wa®held by the trial Court that the defemlart .^"A-. "%> % £> &. ^.f-SSii^ % 1"a ~ jf s "'s^" ^ •• '^y: -^- No.1 shoutel have moved an appltoaUon under SecNonS? of ttre Chhatti^arh Land Revenue Code before the Sub Divisional Officer (Revenue) and nct befwe the Civfl Court and as such the jiK^ment and ctecree {»®sedby the Civll Court in CMI Suit No. 7-A^2 te without jurisdtatton. (x) The cteferelant No.1 ha®nrt perfected his We by adveree posse^ton ewn e©ainsthe State Govemment. ()a) The plaintiff hss prowed that the def dant No.1 has fraudulently shown him to be decendent of Mohan Lal and has oMained Vhe decree in Glvil Sutt No. 7-A/92 by fiw.id and as such is raA binding on the plainUff. (xii) The transfer of the suit tank macte by the detendant No.1 in favour of deferelante No. 2& 3 is Ulegal in view of ttie findir^ ttiat the suit tank hs®v^ted in the State Govwnment. (7) The plaintiffe es well as the defemlants have prefNred Iwo separate appeats before Ure flrst a(^»ltate Court. The plairtiffe were aggrieved by the dismissat of their suit ftw declaraUon of Wis and j»rmanent injuncAion wha-ere the defendants were a^grieved by the decree and finding wherein 'it has been found by the trial Court that the defendants (appetlants of S.A. No.260/07) have oUaned the jiKigmwt and decree dated 04-10-1993 in Chnl Suft No. 7-A^C by eommitting fraud. The first appellale Court, by the impt^ned jut^mentand decree he®dismissed bctt\ the appeeris. (8) Leam«lcounsel for the appellants in thar respecKve aweals have argued ttiat the findings reoswled by the trial Court and confirmed by tte appetlate Court are not correct and not bom out of the true interpretaKon RF «•" .t^.'-'T^. ;. - v> and ap^teation of ttie evidence availaMe on record. The pfaintiffe have argued that ttie ertffe suit shoutd have been decreed whweas the defendants have argued that V decree passed by the trial cairt hoteling that the earlia- ctecree in Civil Suit No. 7-NQQ. is a nu^y, is iltegal and perverse. (9) I have perused the record. From the evklerreeand ftiding recorded by the Cw.irts below it woutel appear that the defendant No.1 Har Prasad tetongs to a difterwt c^te. tn the triaint of Chril SuB No. 7-A/02 as welt as in his aftidavit flled in Uie suit (Ex.P/3) defendant No. 1 Hsu' Prasad he® shown his caste as Dhuri. In para 7 of fte vwitten stalement the defendants admitted that prior to the judgment and decree in Cwil Sutt No. 7-A/92 <he suit tank was recorded in ttie name of ttre Sterte Govemment. Thus, on the basis ofV^ese evideroe the firalK^s recorded by the trial Court that the suit tank had vested in the Stete Govemment and that the defendant No.1 has otrtained the decree by fRMdutently showing him as decendente of the astwhBe proprirfor of the village arat es such ttie eariier decree has been obtealned by cwimittw^i ftaud te well foundwl. These findings of ttie trial Court havit^ bew confirmed by the appeltate Court does nrt appear to be perverse. Further in the present suit the State of ChhatK^arh ha®not been joint as a party. If Ure tank telongs to the State Govemment the plaintiffe should havfrjoin ttie State Govemment for obteming a decree of permanent injuncSon. The triat Court has rightty rqected that part of the suit in wh'ich ttre plsuntiffe has prayed fw a decree.of p»manentinjunction. (10) No substantiat qureUon aifees fw determination »n both fce ^appeats. The findin^ recorded by the Courts betow are |xire finCBi^ of \ I- 7^,. ^\ ^ / -6- fact and aippwted with the evidence of recorol. The fincBngs are netther perveree nor ill^al. (11) Both the a.iyeals faB and are hereby dismissed at the iKlmisaon Sd/- ; prashantKumarMishra Judge