HIGH COURT OF CHHATTISGARH AT BILASPUR ^: .^ Sinale Bench : Hon'bte Shri Dilip Raosaheb Deshmukh. J. Second Apoeal No.542 of 2006 Apoellant Defendant Resoondents Plaintiff Ramkripal, S/o Musayee, Aged about 52 years, R/o Village Amhar, Police Station Patna, Tahsil Baikunthpur, Distt. Koria (C.G.) versus 1. Ranjeet Prasad, S/o Bawayee Ram, aged about 57 years, 2. Shivbhushan, S/o Ramkripal. aged about32years, 3. Kulanjan, S/o Ramkripal, aged about 27 years, The respondent No.2 & 3 were defendants before the Trial Court and alt above respondents are R/o Village Amhar, Police Station Patna, Tahsil Baikunthpur, District Kon'a (C.G.) 4. State of Chhattisgarh, Through : Collector, Korea, DistrictKoroa (C.G.) Second Aopeal under Section 100 of the Code of Civil Procedure Present : Shri Manoj Paranjpe, counsel for the appellant. Shri Ashok Kumar Shukta, counsel for respondent No.1. Shri Akhil Agrawal, Panel Lawyer for the State/respondent No.4. No one appears for other respondente. ORALORDER (Passed on this 09th day of April, 2008) Heard on admission. (2) The appellanVdefendant is aggrieved by the judgment and decree dated 05-12-2006 passed by the District Judge, Korea (Baikunthpur) in Civil Appeal No.33-A/2006 afRrming the judgment and decree dated 23-09-2004 passed in Civil Suit N0.3-A/2002 bythe izL i^^^^;^^,^^^,^^^^^.-^-^,^'"""' Civil Judge Class-11, Baikunthpur granting a decree for possession and permanent injunction against the appelJant/defendant. (3) Brief facts are that one Tapeshwar was the owner of the suit land Khasra No.232 area 0.29 hectares situated in Village Amhar, Tahsi'l Baikunthpur. Sheshmuni was the wife of Tapeshwar. Tapeshwar died on (^-04-1969 teaving behind widow Sheshmuni and cousin Mahaveer, who had a son Shobhnath. (4) Sheshmuni had jnstituted a civil suit against Shobhnath for a declaration that the will dated 18-02-1969 executed by Tapeshwar in favour of Shobhnath was a forged document. During the pendency of the suit. respondent No.l/plaintiff Ranjeet joined Sheshmuni as a co- plaintiff on the basis of a gift-deed executed by Sheshmuni in his favour. This gift-deed, on the basis of whteh respondent No.l/plaintiff Ranjeet was impleaded as a co-plaintiff in Civil Suit No.8-A/70 was not questioned by Shobhnath. The frial Court dismissed the suit (Civil Suit No.S-A/70) by judgment dated 12-04-1979. Respondent No.l/plaintiff Ranjeet preferred First Appeal (Civit Appeal No.32- A/79). This appeal was allowed and it was hetd that the will alteged to have been executed by Tapeshwar in favour of Shobhnath on 18- 02-1969 was a forged document. tt was also held that Ranjeet's title over the suit land remained intact. Shobhnath preferred Second Appeal No.242/82 before the High Court of Madhya Pradesh at Jabatpur, which was dismissed. The present suit was instituted by respondent No.l/plaintiff Ranjeet on the ground that the appellant/defendant and respondents/defendants No.2 and 3 had constructed a house over a portion of the suit Jand and started brick consfruction of a house jn 1995. After repeated assurance on 01-07- ^,t-^^ 1 ^^•^T^^ ^^ ^ y/ 1999, the appeliant/defendant and respondents/defendants No.2 and 3 refused to hand over possession and threatened to dispossess respondent No.l/plaintjff Ranjeet from the remaining portion of the suit land, a suit for possession and permanent injunction was jnstituted. (5) The appellant/defendant resisted the suit on the ground that Shobhnath had, in the year 1975, agreed to sell the suit land to the defendants for a consideration of Rs.10,000/- and had, after receiving an advance of Rs.5,000/-, agreed to execute a registered sale-deed in their favour on receiving the remaining amount of Rs.5,000/-. The defendants paid the remaining amount of Rs.5,000/-, but, due to jll- heatth of Shobhnath. he could not execute a registered sale-deed in their favour. In this manner, the appellant/defendant, atong with respondents/defendants No.2 and 3, was in possession of the suit land since 1975 and had in the year 1980 also constructed a kachcha house on the suit land and was residing. In 1989, they opened a shop in the said house and jn 1995 constructed a pakka house. It was further pleaded that Shobhnath had, prior to his death on 29-06- 2000 acknowledged the transaction by executing an affidavit. (6) The trial Court held that the ctefendants had failed to prove that they were in possession of the suit land sjnce 1975 or that Shobhnath had possession over the suit land in 1975. It was ateo held that the defendants had failed to establish any title over the suit land. It was also held that respondent No.l/plaintifF Ranjeet had titte over the suit land and was entitJed to recover possessjon. The towerappellate Court has affirmed the finding recorded by ttie trial Court white dismissing the appeal. It has considered that from 1981 to 1988, the r" /a: \ (te' ll ^s.y ,^ ^. suit land was under attachment in proceedings under Section 146 of the Code of Criminal Procedure before the S.D.M. and possession of the suit land was delivered from the Supurddar to the plaintiff on 12- 02-1991. Thus, possession of the defendants over the suit land from 1981 to 1991 was not established. It was further held that the defendants had not produced any revenue records to show their possession over the suit land. It was further held that Shobhnath had no title over the suit land in tiie year 1975 or at any time thereafter and, therefore, could not transfer any titte to the defendants. It was further held that jf Shobhnath had delivered possession of the suit land to the defendants in the year 1975 and Ranjeet had jojned as co-plaintiff in the earlier litigation on the basis of a gift-deed ofthe suit land executed by Shobhnath, the defendants would not have remained mute spectators and would have joined in the suit. It was also held that since the plaintiffs claim was based on title and the relief of permaneht injunction was also daimed, the civjt Court had jurisdjction. (7) Shri Manoj Paranjpe, tearned counsel for the appellanVdefendant was heard on admission at length. Learned counsel for the appellant/defendant did not assail the finding recorded by the Courts below that Shobhnath, the vendor, through whom the defendants claimed title over the suit (and had no titte over the suit land, but, argued forcefuljy that respondent No.l/ptaintjff Ranjeet could succeed only on the strength of his title and for doing this he was required to aver and prove the source of his title, i.e., the gift by Sheshmuni. :^>. j ^i^ ^^/ . ,,^ (8) I have perused the record as also the judgments delivered by the Courts below. 1 am of the considered opinion that the finding recorded by the Courts below that the defendants had absolutely no title over the surt land is impeccabte. j am also of the considered opinion that in the earlier litigation, which was fought to the stage of second appeal before the High Court of ^4adhya Pradesh, the title of respondent No.l/plaintiff Ranjeet over the suit land was held to be intact. Apart from this, in the present suit, respondent No.l/ptaintjff Ranjeet had proved Kishtabandi Khatauni of 1997-98 Ex.P-1, Record of Rights Ex.P-4, Khasra Panchshafa for 1975-76,1976-77 and 1998- 99 Ex.P-6 and Ex.P-2. which show that Ranjeet js the recorded Bhumiswami of the suit land. The argument of leamed counsel for the appedant/defendant tiiat respondent No.l/plaintifF Ranjeet was required to pray for the relief of declaration of his title over the suit land and prove the source of his titte, does not, therefore, hold grouncl. I am in comptete agreement with the findings and the reasonings recorded by the lower appellate Court whjte clismissing CMIAppeaJ No.33-A/2006. (9) In view of the above, 1 am of the considered opinion that no substantiat question of law is involved in this appeal. Accordingty, the appeal is dismissed at the stage of admission. M.(C.)P.No.2298/2006. an appljcatton under Order 41 Rute 5 read with Section 151 of the Code of Civil Procedure is also dismissed. I.A.NO.02/08, an application for vacating stay, is atlowed. Ad-jnterim stayorderedon 03-01-2007 isvacated. Sd/- Dilip Raosaheb Deshmukh Judge Gopal