HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.162 of 2007 APPELLANTS: RESPONDENTS: Sonmati and others Versus Ramu and others Post for pronouncement of iudament on 21st April, 2010 Sd/- T.P. Sharma Judge ysiiWi HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANTS/: (Plaintiffs) RESPONDENTS/: (Defendants) Second Appeal No. 162 of 2007 1. Sonmati W/o late Dasharu aged about 60 years, (dead) 2. Baldev Prasad S/o Late Dasharu aged about 36 years 3. Prahalad Prasad S/o Late Dasharu, aged about 32 years All are residence of Village Hirri, Tehsil Bilha, Distt. Bilaspur (C.G.) Versus 1. Ramu, S/o Late Mittulal, aged about 38 years, 2. Khemu, S/o Late Mittulal, aged about 32 years, 3. Manik S/o Late Mittulal, aged about 30 years, 4. Rajni Bai W/o Late Mittulal, aged about 56 years, 5. Dulaurin Bai D/o Late Mittulal, aged about 45 years All are residence of Village Hirri, Tehsil Bilha, Distt. Bilaspur (C.G.) 6. Ramdin Bai D/o late Mittulal, Aged about 40 years, W/o Khilawan R/o Kodawakorii, Tehsil Bhantapara Distt. Raipur (C.G.) 7. Munni Bai D/o late Mittulal, W/o Rajendra R/o Bharni Parsada,. Sub Tehsil Sakari, Distt. Bilaspur (C.G.) 8. Laxmi Bai W/o Late Sonuram Aged about 78 years, 9. Faguram, S/o Sonu Aged about 45 years. 10. Babulal S/o Sonu Aged about 38 years, 11. Horilal S/o Sonu, Aged about 30 years, 12. Kumari Bai W/o Sukhchandan D/o Sonu/Aged about 50 years, 13. Sukalhin Bai W/o Leelaram, Aged about 45 years, ^ m"% 1 .-® -^; Defendant No.8 to 13 R/o Village Hirri, Tehsil Bitha, Distt. Bilaspur 14. Sundar S/o Kunjram Mochi R/o Village Hirri, Tehsil Bilha, Distt. Bilaspur (C.G.) 15. The State of Chhattisgarh, Through Collector, Distt. Bilaspur (C.G.) {Second appeal under Section 100 ofthe Code of Civil Procedure, 1908} Present: Mr. Malay Kumar Bhaduri with Mr. Anant Bajpai, counsel for the appellants. Miss Sangeeta Mishra, Panel Lawyer for the State/respondent No.15. Sinale Bench: Hon'ble Mr. T.P. Sharma. J JUDGMENT (Delivered on 21stApril, 2010) 1. By this second appeal, the appellants/plaintiffs have challenged legality & propriety of the judgment & decree dated 23-1-2007 passed by the 5th Additional District Judge, Bilaspur in Civil Appeal N0.2-A/2007 affirming the judgment & decree dated 12-1-2006 passed by the 9th Civil Judge Class-II, Bilaspur in Civil Suit No.lSlA/2004, whereby learned Civil Judge Class-II while allowing the counter claim of respondents No.'l to 3 herein for declaration of title and possession over the suit tand, has dismissed the suit filed on behalf of the plaintiffs. 2. Brief facts necessary for the disposal of this appeal, as per pleadings of the parties, are that the appetlants/plaintiffs have filed suit for possession of suit land on the basis of previous dispossession by respondents No.l to 4 herein. The plaintiffs have claimed title over the land on the basis of one unregistered gift deed executed by deceased Sonia vide deed dated 22-12-38 in favour of Sidua predecessor-in-title of the appellants, whereby alleged Sonia has gifted the disputed property to her grand-son Sidua and possession was parted to SicJua. After the death of Sidua, Dasru came into possession who died in the year 1986 and from 1986 to 1995 the plaintiffs were in possession of the suit land. In the month of July, 1995, respondents No.l to 3 herein have dispossessed the plaintiffs TT '^ i. from the possession of the suit land. The appellants herein have filed suit for possession on 10-5-2000. 3. By filing written statement, respondents No.l to 4 herein have denied the allegation including execution of gift in favour of Sidua and possession of Sidua or Dasru or the appellants herein over the suit land. They have specifically pleaded that the respondents have succeeded the property and they are in possession since 1951-52, only suit for possession with claim for declaration of title was not maintainable. The respondents have filed counter claim for declaration of title and possession over the suit land. 4. After affording opportunity of hearing to the parties, learned Civil Judge Class-II has decreed the counter claim and dismissed the suit of the plaintiffs/appellants. Judgment & decree of the trial Court were challenged before the lower appellate Court and the lower appellate Court has affirmed the judgment & decree vide the judgment & decree impugned. 5. I have heard learned counsel for the parties, perused the impugned judgment& decree and records ofthe Courts below. 6. Learned counsel for the appellants vehemently argued that the plaintiffs were in possession of the suit land on the basis of gift deed executed on 22-12-38 and have produced in the evidence from the custody of proper person. In such a case, the Court was under obligation to presume the signature and other part of document and its due execution and attestation in terms of Section 90 of the Indian Evidence Act, but the Court below has failed to presume the genuine execution of such gift deed. The Court below has also committed illegality by decreeing the counter claim of the defendants without any evidence. Learned counsel further argued that the present appeal should be admitted for consideration on the following substantial questions of law: - (l)Whether the gift deed dated 22-12-38 is validly executed gift deed? (2)Whether the findings of both the Courts below relating to decreeing of counter claim are perverse? 7. Learned counsel for the appellants placed reliance in the matter of Govindaraju v. Mariamman (2005 AIR SCW 916) in which the % Apex Court has held that substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to same should have a material bearing on rights of parties. Learned counsel further placed reliance in the matter of Bhag Singh v. Jaskirat Singh & Ors. (2010 AIR SCW 172) in which the Apex Court has held that question of construction and genuineness of Wills arising in appeal, dismissal of Second Appeal without deciding question raised is improper. 8. On the other hand, learned State counsel opposed the appeal. 9. Allegation of the plaint clearly reveals that the ,suit was for possession of the suit land on the basis of previous possession. The plaintiffs have not filed any suitfor declaration of title on the basis of the alleged gift deed. The gift deed was not in question before the Courts below. The suit is relating to revenue land. The plaintiffs have not filed any document to show their possession over the suit land, inter alia, the revenue record filed on behalf of the respondents reveals possession of the respondents. lO.Both the parties had led evidence and on the basis of oral and documentary evidence, both the Courts below have decreed the counter claim of the respondents and the trial Court has dismissed the suit filed on behalf of the appellants. The alteged gift deed was executed in the year 1938 but for the reasons best knovvn to the plaintiffs, the predecessors-in-title have not applied for mutation of their names in the revenue records on the basis of such gjft deed since 1938 till filing of suit i.e. the year 2000 and even the plaintiffs have not filed any suit on the basis of the alleged gift deed. The plaintiffs have not filed any documentary evidence like khasra panchshala and record of rent to show their possession, but inter alia, the respondents have filed revenue record showing their possession on the suit land. 11.0n the basis of evidence adduced on behalf of the parties, both the Courts below have decreed the counter claim filed on behalf of the respondents and have decreed the suit for possession filed on behalf of the appellants. Both the Courts below have not committed any illegality in dismissing. the suit of the plaintiffs and decreeing the counter claim of the respondents. ;i^ -il Soma -^ l2.As held by the Apex Court ih the matters of Govindaraju & Bhag (supra), in case if substantial question is involved in second appeal, the Court is required to formulate the substantial question of law and decide the case on the basis of the said substantial question of law. But in the present case, no substantial question of law is involved for decision of the instant second appeal. Therefore, both the above matters relied upon by learned counsel for the appellants are distinguishable on facts to that ofthe present case. l3.In the present case, the alleged gift deed is not relevant docum'ent. The plaintiffs have not claimed any title or possession on the basis of such gift deed. Therefore, no substantial question of law for decision of second appeal relating to genuine execution of gift deed is involved in the present case. Virtually I do not find any substantial question of taw for decision of the present second appeal. Consequently, the appeal is liable to be dismissed and it is hereby dismissed. No order as to costs. Sd/- T.P. Sharma Judge