Hon’ble Shri Dilip Raosaheb Deshmukh, J. Singie Bench : Second Appeal No.6a of 2006 Khelawan and another VerSUS Banau Singh and athers JUDGMENT ‘ P0$t or ’ L-O4-2008 Sd-/ Dilip Raosaheb Deshmukh Judge HIGH COURT OF GHHATT!SGARH AT BILASPUR HIGH COURT OF GHHAT'HSGARH AT BILA$PUR Sinqle Bench : Hon’ble Shri Dilip Raasaheb Deshmukh, J. Appellants Respondents 1, 2. Khelawan, aged about 35 years, S/o Pakaiu Kanhaiya alias Khelu age about 32 years, S/o Pakalu Both are residing at Village Pakarla, Tahsil Takhatpur; District Bilaspur (C.G.) vefSUS r Banau Singh, age about 50 years, 3/0 Bhuwan Singh, R/o Village Pakaria Tiharu, age about 45 yeal's, 5/0 Thanwar Satnami, Village Khudiaclih Kanwanu, aged about 43 years, S/o Thanwar Satnami, Village Khudlacllh 3(a) Birij, S/o Bhanu 3(b} Dukalu, S!o Bhanu 3(c) Fagu, S/o Bhanu 3(d) Baisakhu, S/o Bhanu Mangalu, aged about 4O years, S/o Banmali Bansi, aged about 32 years, Slo Banmali Chorahin, aged about 55 years, Wk) Rambhau Rajput (Thakur) All are Rio Village Pakaria, Tahsil Thakatpur, District Bilaspur (C.G.) Second Appeal N059 of 2006 Appeal under Section 100 of the Code of Civil Procedure. 1908 Present: Shri H.P.Agrawal, counsel for the appellants. Shri H,V.Sharma, counsel for respondents No.1 and 6. No one appears for other respondents. JUDGMENT (Passed on this N day orApriI, 2003) The unsuccessful plaintiffs/appellants are aggrieved by the judgment and decree dated 14-11-2005 passed by lllrd Additional l 4W Lit , District Judge, BilaSpur in Civil Appeal No.19-Af2004 affirming the judgment and decree dated 15-094 998 passed by the Vth Civii Judge Ciass-ii, Biiaspur in Civii Suit No.84-A/1 937, (2) Brief facts are that the appellants/plaintiffs along with their mother Manjribai had instituted Civil Suit No.84-Al1997 in the Couit of Civii Judge Ciass~ii, Biiaspur for declaration of title and passession of the suit lands on the ground that Manjribai had [not said Khasra No.1044/1 and Khasra Ne.1045f’l total area 3.50 acres to respondentldefendant Chorahinbai on 07-04-1961 [and the sale-deed executed by respondent/defendant No.1 Banau Singh in favour of respondentldefendant No.2 Tiharu on 18-03-1971 in respect of Khasra No.816 area 0.43 acres was void since Banau Singh has no title. Similarly sale-deed executed by one Girendra Singh in favour of Tiharu of land Khasra No.864 area 0.470 hectares was also void since Girendra Singh had no titte.‘ No prayer for setting aside the sale-deeds mentioned above was made. (3) The respondents/defendants resisted the suit on the ground that the appellantsfplaintiffs were never in possession of the suit lands and were, therefore, never dispossessed. Respondent/defendant No.1 was in peaceful adverse possession. it was urged that the suit was barred by limitation. lt was further alleged that the appellants/plaintiffs were never in possession of land Khasra No.816I2 area 0.43. acres and Khasra No.864 area 0.47 acres. After purchasing the lands from Banau Singh and Girendra Singh. the lands were mutated in the name of new No.2 Tiharu. / / r/ . / /// (4) The trial Court dismissed Civil Suit No.84-A/1997 on the ground that the appellants/plaintiffs had faited to prove that the suit tands were thew joint ancestral property or that they were forcibly dispossessed by the respondents/defendants. it was aiso heid that the respondentsidefendants were in tong uninterrupted possession of the suit lands and Banau Singh had acquired title over Khasra No.816 and Khasra No.864. On the question ofzlimitation, the trial Court observed only as under: mamsvmmmmstsmwswfsgw Wmandntmmawmshmwmaa’étm. w%seqhfer%sas%astmmi§c5ammw maathmfeasl" (5) ’Being aggrieved, the appellantslplaintiffs preferred Civil Appeal No.42-A/19$3 in the Court of ilnd Additional District Judge, Bilaspur. During the pendenoy of the appeal, a compromise was effected between the appellantsiplaintiffs and respondents/defendants No.2 to 5. An appiication was filed by the appellants/plaintiffs under Grder 41 Rule 27 of the Code of Civil Procedure for filing copies of revenue records showing that on 09-04-1959 names of Manjribai, mother of the appellantsrplaintiffs and appellant/plaintiff Khelawan were recorded as owners. The appellate Court allowed the said appiication under Order 41 Rule 27 of the Code of Civii Procedure and observed that it was necessary to give opportunity to the respondents to adduce documentary evidence in rebuttai. After setting aside the impugned judgmentand decree passed by the Vth Civii Judge Class-ii, Bilaspur in Civii Suit No.84-A/1997 dated 15-09-1998, it remanded the suit for re-trial. it is pertinent to note that before the appellate Court, in View of the gx compromise between V the appellantsfpmintiffs and fespondents/defendants No.2 to 5, the dispute was. confined between the appeilantsfplaintiffs and respondents/defendants No.1 and 6. After remand, the suit was registered as Civil Suit No.109—AI2001 in the Court of Ist Civil Judge Class-i, Biiaspur. Vide judgment and decree dated 23- 08-2001, the trial Court dismissed the suit on the ground that the suit was barred by limitation since the plaintiffs had, after attaining majority not challenged the sale by mother'Manjribai in favour of Chorahinbai within the period prescribed by law of limitation. Being aggrieved, the appellants/ptaintiffs preferred Civil Appeal No.19—AI2004 before the lllrd Additional District Judge, Bilaspur, who dismissed the appeal while affirming the judgment and decree passed by the lst Civil Judge Class-l, Bilaspur in Civil Suit No.109-Al200’l. (6) The appeal is admitted on the following substantial questions of law: “1(a) Whether the Courts below were not justitied in re- opening the issues of limitation when the same was finaliy decided by the trial court in favour of the plaintiffs by the first judgment dated 153.1998 and the matter was remanded on timited issues in which the issue of limitation was not there and the decree of the Courts below vitiate on this point? And (b) Whether in the facts and circumstances of the case, the plaintiffs’ suit was liable to be decreed as all the issues except the issue of timitation decided in their favour?" M- (7) Having considered the rivai contentions, i am of the considered opinion that this appeai has no merit. Since the Court of Civil Judge Class-ii,._Bilaspur had disposed of Civil suit No.84-Al1997 on ail issues2.“. @a/ the order of remand passed by the Iower appellate Court in Civi! Appea‘ N0.42-A/1998 was squarely under Order 43 Rule 23-A of the Cede of CivirProcedure. in Civil Appeal No.42-Ai1 998, the lower appellate Court had clearly observed that in View of the application under Order 41 Rule 27 of the Code of Civil Procedure for tiling documerrts tiled by the appellants/plaintiffs being allowed with a direction to the lower Court to give opportunity to the respondentsidefendante to me doeuments in rebuttal and to lead evidence, it would be neceesary to decide the suit afresh on merits. Although it directed that the suit was being'remanded for re-triai under Order 41 Rule 23 of the Code of Civil Procedure, the lower appellate Court was acting under Order 41 Rule 23-A of the Code of Civil Procedure. Therefore, the lst Civii Judge Ciass-l, Bilaspur was justified in reconsidering the entire evidence as weil as the issue of limitation afresh. in any case, the finding recorded by the Vth Civil Judge Class-ll, Bilaspur in Civil Suit No.84-A/1997 on the question of limitation was in a perfunctory manner and without application of mind. After remand by the lower appeilate Court with a direction for re-trial, the lst Civii Judge Class-l, Bilaspur wasjustified in recording a finding afresh on the question of iimitation. During the arguments, learned counsel for the appellantsi’plaintiffs has not been able to demonstrate that the finding recorded by the Vth Civil Judge Class-ii, Bilaspur on the question of limitation was erroneous. Manjribai had sold Khasra No.1044/1 and Khasra No.1045/1 total area 3.50 acres to Chorahinbai by a registered sale-deed dated 07-04-1961 and the appellants/plaintiffs after attaining majority did not chalieng'e the same within the period of limitation prescribed by law. it is also pertinent to note that the appellantslplaintiffs did not pray for the relief of canceliation of sale-deed executed by Manjribai in favour of Chorahinbai. It is also pertinent to note that the ‘\~\ . i appeliantsiplaintiffs did not aver in the plaint that they were in possession of the suit lands at any point of time after attaining majority. No document was also med to substantiate this. in this View of the matter, the finding recorded by the ist Civii Judge Class-i, Biiaspur that the suit was barred by limitation as not having been filed by ‘the appellantsfplaintiffs within three years aher attaining majority is impeccabie. The tower appellate Court has also, in Civil Appeal No.19- N2004 rightly afrrmed the said finding. Accordingly, both the substantial questions of law are answered against the appellants/plaintiffs and in favour of the respondentsidefendants. (8) in the result, there is no merit in this appeal, which is accordingly dismissed. in the facts and circumstances, there shall be no order as to costs. i Dilip Raosaheb Deshmukh Judge Sd—/ Gopal