IN THE HIQH CQURT OF CI-tM»rnS(3ARHAT BILASPUR SE03NDAPpi^tiW^QSCT2007 ADDeUants fDefenclants^ ^ ,.'a<< ' '^•'••- ._'.v^ :•<)?••',.;sA^'^^ -w :••' .A< y^^ y; ^...^ Respondents fPlaintiffs') ^, ^' 5, 6. 1. Balkunvar aged about 63 yeare d/o Ropan Singh w/o Supet Singh Kanvar Sh(v Sagar aged alsout 30 years s/o Supet Singh Kanvar 3^ Sukh Sagar Singh aged about 35 years s/o Supet Singh Kanvar Singh |Kanvar agecl about 65 years s/o Dharam Stngh Kanyar All tyo Murfnur TahgH fendFa roaiEl P.S. Rendra DiStrict Bilaspur C.G. Versus t-1arnam Singhagedabout 27 yeare s/o Ranjeet: Singh Sangam Kunvar aged a&Qu< 30 yearsd/oRanjeetSingh Sacfan Kunvar aged abQut 28 yearsd/o R3R}eetKyrwar Kotia Bai aged about 2S ^ffars ci/o Ranjeet Singh - 'Kaitash KyrtVar aged about 21 yeared^o%anjeetSingh Wjrnapn Bai aged aboul 28 ;^^rs,'d/o;;611oop3ingh:l':.'-:'?.^ •I HKS: ?^:3^ M?:i^^ 7. Bhagat Singh aged about 63 years s/o Gareeb Singh All Caste Kanvar r/o Murmur Tahsil Pendra road P.S. Pendra District Bilaspur C.G. 8. State of Chhattisgarh Through CoUector Biiaspur C.G. MEMO OF SECOND APPEAL UNDER SECTION FOO OF THE CODE OF CIVIL PROCEDURE. 1908 Annpal ualLied -&a- li.ih.'m—ii ^Sf^:^"^?;' HIGHCOURT OFCHHATnSGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.405 of 2007 Appellants Respondents versus Balkunvar andothers HarnamSingh and others Present: Shri Yogendra Chaturvedi, counsel forthe appellants. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondent No.8. Second Appeal under Section 100 ofthe Code of Civil Procedure. 1908 ORAL ORDER (Passedon1stJuly,2010) Learned counsel forthe appellants is heard on admission. The plaintiffs/respondents filed a suit for declaration of title and permanent injunction on the pleadings that both the parties have 19 acres of ancestral land, which was partitioned and the holdings were separated in 1975. The suit pertains to 2.62 acres of land on which the plaintiffs/respondents are in possession, however, onthe basis of a forged deed of exchange, defendants No.1 to 4/appellants got mutated their names in the suit land. The Bub-Divisional Officer (Revenue) passed an order on 15-10-2001 giving cause of action for fiting the present suit. The appellants, who were defendants denied the plaint allegations interalia contending that the exchange of land was effected with the consent of both the parties and thereafter change of revenue entries was effected on 17-2-1980 and since then the defendants are ^, I •^ M v / ^y ^ in possession. It was also stated that the plaintiffs have included this land in their partition in 1992-93, which goes to prove that they had consented to the exchange and had the knowledge of the change in revenue entries. 3. The learned trial Court decreed the suit after finding that the defendants have not submitted any deed of exchange or any other document to prove that the lands were exchanged at any point of time. The trial Court also found that on the basis of revenue entries it is proved that the plaintiffs have received the land in partition in the family. The trial Court also found that defendant No.1 Balkunvar has stated that there was a written deed of exchange exhibited between the parties in front of the Village Kotwar and the father of the Village Kotwar, however, neither those witnesses have been examined nor the deed of exchange has been placed in evidence. It has also been observed that at the time of the alleged exchange, some of the plaintiffs were minor. 4. The trial Court, thus, dismissed the suit after finding that the suit filed in the year 2002 by taking the cause of action from the date when the Sub-Divisional Officer (Revenue) rejected the plaintiffs' prayer for correction in the revenue entries, is within limitation. 5. The appellate Court has affirmed the judgment and decree passed by the Court below. "c^ KS".-. ::-^ "Si-St;.. 1 ^ 6. Learned counsel for the appellants submits that the evidence available on record has not been appreciated properly and in any case the suit was barred by limitation. 7. Having heard learned counsel for the appellants and after perusal of the record, this Court finds that for effecting exchange of agricultural land, the Chhattisgarh Land Revenue Code, 1959 makes a provision under Section 167 thereof, however, in the present case, no such application or order passed by the competent revenue officer has been placed on record. The parties could also have effected the exchange by a registered deed of exchange, however, this has also not been done between the parties. The only evidence in support of the exchange of land is Ex.P-8, which is Sanshodhan Panji containing an endorsement by the Revenue Inspector mentioning that the parties have mutually exchanged the land and there is no dispute. This document does not satisfy the legal requirement of Section 167 of the Chhattisgarh Land Revenue Code, 1 959 or the requirement of effecting exchange of land by a registered instrument. The plaintiffs have averred in the plaint that they were in possession of the land during all this period, however, the defendants created disturbance in their possession in the year 1 999 on which they moved an application before the Sub-Divisional Officer (Revenue), Pendra Road, which was dismissed on 15-10-2001 and thus the cause of action arose on the date when their application for correction of entries was dismissed by the Sub-Divisional Officer (Revenue). According to the defendants, the plaintiffs were aware of the revenue entries at least from 1992-93, xtherefore, the suit is barred by limitation. ,y r' w 8. The learned trial Court has dealt with this issue as issue No.5 and the same has been decided against the plaintiffs in paragraph 13 of the trial Court's judgment. 9. The appellate Court has also dealt with this issue in paragraph 16 to hold that the suit is within limitation. 10. The defendants claim that the exchange took place in 1980, however, there is no deed of, exchange iplaced -on record. The plaintiffs, therefore, pleaded the date of accrual of cause of action to be 15-10-2001 when their application was rejected by the Sub-Divisional Officer (Revenue). It is not the case of the defendants that the plaintiffs were present on the date when the revenue entries were corrected in 1976 or in 1980. Moreover, when the said exchange took place or the entries were corrected on the basis of alleged exchange of land, some of the plaintiffs were minor. It is not brought on record as to on what date those plaintiffs have become major and whether the suit was preferred by them after attaining majority. In view of these facts, this Court is of the opinion that the findings recorded by the Courts below treating the suit within limitation |s,npt illegal or absurd. Even otherwise, the plaintiffs claim to be in possession of the suit land and the defendants have neither claimed,that they are in possession nor raised a plea of adverse possession. In view of this also, ttte suit is found to be within limitation. 11. In State Bank of India and others vs.S.N.Goyal, (2008) 8 \SCC 92, in paragraph 1 3 of the report, the Hon'ble Supreme Court has n -1€ ^ % enunciated as to what is a substantial question of law. Applying the said principle in the present case, this Court is of the opinion that the appellants have failed to demonstrate any substantial question of law arising for determination in this appeal. The second appeal, thus, fails and is hereby dismissed at the stage of admission itself. Gopal Sd/- Prashant Kumar Mishra Judge