vx \- ^ } ^ RESPONDENTS &EFENDANTS ^x <!,•' IN THE HIGH COURT OF JUDICATURE AT BILASPURJC^.G.l SECOND APPEAL N0. APPELLANT :- ^ Banshi Lal S/o Dew Singh Teli, aged ^PCAINTIFF "' 60 years, Occupation-Agriculture, Resident of village Regada, Tahsil and District Raigarh [C.G.J. VERSUS Mohammad S/o Faffur, aged 35 years, 2] Islam S/o Gaffyr, aged about y 34 years. 3] Shobhnath S/o Gopiram / Aghariya, aged about 40 years. All resident of Regada, Tahsil and District Raigarh [C.G.]. 4] State of Chhattisgarh, .,/-' Through- Collector, Raigarh SECOND APPEAL UNDER SECTION100 OF CIVIL PROCEDURE ;:-^ \ Appellant/ Plaintiff HIGH COURT OF CHHATTISGARH : BILASPUR Second Appeal No. 283 of2006] Banshi Lal Vs. Respondents/ Defendants Mohamm'ad and others, —/ JUDGMENT PQSlfORJUDGMENTON 1^.09-2006 Sd/- Dhu'endra Mishral Judge Nn'l'mn*'ll^^'n«'«^l^ani^ilNIN)WINirt«»Niil!M«ldlUNNrt!UN8®N^ -^ Appellant/ Plamtiff HIGHCOURTOFCMHATTISGARH : BILASPUR Second Appeal No. 283 of 2006 Banshi Lal Vs. Respondents/ Defendants Mohammad and others. Dhirendra Mishra, J Appellant by Shri S.K. Tiwari, Advocate. JUDGMENT (Delivered onis-/09/2006) The appellantfplaintiff has preferred this second appeal under Section 100 of the Code of Civil Procecfure against the judgment and decree dated 04th March 2006 passed by the tearned Second Additional District Judge, Raigarh in Civil Appeal No. 23-A/05 and by which the civil appeal preferred by the appeltant against the judgment dated 27.4.2005 passed in Civii Suit No. 235-A/02 by learned Additionai Ghfli Judge, Ciass- I, Raigarh, has been dismissed.' (Parties hereinafter shai! be referred to as per their description before the trial Court). 2. Briefly stated the case of the plaintiff is that the plaintiff filed a civil suit for declaration, possession and damages with the averment that the suit land described in schedule with the plaint was purchased as Aabadi land by father of the plaintiff Dev Singh on 13.4.1956 from ex-proprietor Khaliullah without any consideration forever and KhaliuHah has executed a !-..i X.) snueAej SL|} ui pessed sj&pjo jsd se ssiijed si|}i|}oq^o eouessjd e4} u! l.OOS'S'l.l. u° p8»e3-iBUJ9p sew puej eq} (eq} pSBjiuqns jsqyn^ ussq SB4 l| 'uoisseBsod in^soeed ui SBAA 4ieuqq649 g 'bN }uepuo^8p e|es ^o 9}ep eq; 0104 ^BLJI pspe9|d useq seq ^ pue psiuap useq OS]B seq pue| }ins &q} jeAo j^!)Uje|d 94} .)6 (JBiffoyi) p|sy Buiqsejq} ^o eou8}sixs p 40Bj 941 •4}eu4qoqs jo uojssessod u; se SLUBS eq) pue pue] }ins eq} JSAO uoissessod ui useq JSASU seqyiiuieid stfi 'psAoiusj qs]e se/iA i./ZQZ 'ON ejseqx Buuesq pue| Jiei;} ejo^sqjjituieid si|} p ^ueujqaeojous eq} sssoojd 04} ui pue psAOiusj eje/a siusLuqoeojoue jojsqiunu uoipnjisuoo pEQ.i ^o si.u!} aij) }e }B4} psieis SAB^ }U8tU8}E}s U9BU luiof jieijl ui g 0} [. •Q|S| siuepus^ep luiB|d 04} ui suoi»BB8|)B 94} BuiAusQ 'g •puB|4!ns sqiJSAO uoisssssod BUO| SILJO} snp uoisssssod ssjsApe Aq g|}!i siq pe}oa|jed sei) ^j}U!B|d ei|} ^eq} p9UJjB|3 ueeq set|}i usqi '\.ILQZ 'ON ejseifx jo )jed e eq G} puno^ si puej iins 94} eseo ui }eq) pepeeid uoeq seq }i SABBUJSt|e 941 u| •l.QOS sunr qiSI. uo soussqe SILJ ui j^!}uiB|d &4) p pue[ ei|} y> uoisssssod [njsojo^ u3>[B( 9Aeq 2 pue I. -ON stuepue^ea •ee5\.'\.'SZ uo ueqjBN uoj^ leuiiosip /e'o eeje 'I./ZOS i •O|M Bjseq» Buuesq pue| )ins sq} psseijojnd sey 94 yzifi petuieio e •ON ^uepuejsp 'JSASWOH 'sejeioey QSI'O B9JB 'I./ZOS 'ON ejseqx Bui)eAi].|no SBM ueqjBN •uoisssssod siy ui psiQ^ayii JSASU Aaij} pue p8}Bn}]s SBM pue| s,qe]|n!|B4>| ISSM 94} u.i SBejei^M ueqjeN p pue] SBM SJSL)} pue| tins sq) jo qinos 94} ui }Bitt PSJJSAB jeq}jnj sey }U!B|d syi •sjeeA 9^ ^o poued snonui}uo3 e jo^ uojidnjjsiui Aue (noyiim pue| ^ins eq} p uoisssssod in^soeed ui e.ism jsq^ siq pue y!}uiB|d 84} usq) eouis pue yftuiBid Sq} p jsqtej p jnoAB^ ui ©uues04} 0} BujUfB}jsd 9S6l"fr''SI. P3iep pesp 4. On the basis of pleadings of the respectiveparties, issues were framed and the tria! Court dismissed the suit by recording a finding that the plaintiff has failed to prove that Khaliullah was in possessiori before 13.4.1956 over Khasra No. 207/1, area 0.150 hectares, he has further failed to prove that father of the plaintiff obtained possession of the suit land from Khaliuliah and since then they are in continuous possession of the suit land and thereby have perfected the title due to long possession, 1 that defendants No. 1 and 2 have not taken forceful possession and thereby dispossessed the plaintiff from the suit tand and therefore, he is entitled to recover the possession and that defendant No. 3 has also failed to prove that the suit land belonged to Narhari and he has purchased the same legally from him and that it has also not been established that defendant No. 3Shobhnath is owner of KhasraNo.207,area 0.150 hectares. 5. The appeal preferred by the plaintiff has also been dismissed by the appetiate Court by the impugned judgmentwith identicat finding. 6. Learned counsel for the appellant/ plaintiff contended that finding of both the Cpurts below is based on' non-consideratibn of the pleadings of the respective parties and the same has been recorded considering that thesuit iand is in fact the land bearing'Khasra No. 207, area 0.150 hectares though from bare perusal of the plaint and written statement, it would be evident that the plaintiff was in possession over the plot adjacent to the above land. He has drawn attention ofthis Court to paragraph -14 (A) of the plaint and argued that the tearned trial Court has wrongly framed; I- <•• '^ i?::;ila^ • •£ \ issue Nos. 1 & 2 by which the disputed land-has been described as Khasra No. 207/1 and therefore, foliowing substantiai questjons of law have arisen for adjudication ofthis appeal: (A) (B) 'Whether the impugned judgment and decree passed by first appellate Court is bad in law and perverse, hence it is liableto be set-aside?" 'Whetherthe wrong appreciation offacts by the learned Courts below can be re-appreciated and examined in second appeal?.„ i 7. I have heard learned counsel for the appellant and perused the material available on record. 8. Learned trial Court has dismissed the suit of the plaintiff with a finding thatthe plaintiff has not filed any document to demonstrate that the land in question was recorded in the name of Khaliullah who transferred thesame to the plaintiffand the plaintiff himseif hasadmitted that the same was Aabadi larid which was given to him by Khaliuliah and in paragraph - 25 of his cross examination he has admitted that Khasra No. 207/1 is.the Bhumiswami landoTShobhnath.Therefore, inthe absence of identity of the suit land and jn the absence of any evidence of title of the predecessor, it has been held that the ^laintiff has faiied to prove that the suit land belonged to Khaliullahand accordingly, it has been further held that even if it is assumed that the document of Ex.P/1 is a valid document, it confers no title to the plaintiff inthe absence of evidence to the effect that theexecutant ofEx.P/1 has any right totransfer the land inquestion. €y.^ 'T.'i •-•:\ 9. So faras the arguments of learned counsel for the appellant that issue Nos. 1 & 2 have been framed by the Court below without the pleadings of the respective parties is concemed, it cannot be accepted firstly on the ground that the plaintiff participated in the proceedings without raising any objection in this regard either before the trial Court or first appellate Court that the issue has been wronglyframed andthe same is beyond the pleadings oftherespective parties. Secondiy, from perusa! of paragraph 20(A) of the plaint wherein it has tieen pleaded that in case possession of the plaintiff is found over Khasra No. 207/1, in that case the plaintiff has perfected his title byadverse possession as he and his father were in continuous and uninterrupted possession from 1956till June 2001, it has been denied by the defendants in paragraph -20(A) of their written statement. Thus, in the light of pleadings in paragraph - 20 of the plaintiff and denial of the pleadings, it cannot be said at this belated stage that issue Nos. 1 & 2 have wrongly been framed by the learned trial Court. Both the Courts below have reeorded a concurrentfinding of fact that the plaintiff has failed to prove his title over the suit land ancf has further failed to prove his possession over thesuit land and therefore, no substantial question of iaw as propos^d above by the appellant or any other substantial question oflaw, has arisen for adjudication of thisappeal. 10. In the result, the appeal being devoid of substance deserves to be dismissed at the admission stage itself and is accordingly, dismissed. Sd/- Dhirendra Mishrai Judge