n 4^ ® IN THE HIGH COURT OF JUDIC.ATURE CHHATTISGARH AT BILASPUR SECOND APPEAL N0. ^\ / 2005 ApDellant „ (Naintifit Versus Prakashchand Jain S/o Shri Heera Lal Jain, Aged about 48 years, R/o Village Dondi Tahsil Balod, Dist : Durg-(C.G) ResDondents /iDefendantj ^^^' ^.%?^ ^Bro7" 'v>'% ...<^.-" >K ^ •^} ^r ^" ^...--••" 1. State of Chhattisgarh ^ Through Collector Durg Dist : Durg-(C.G.l 2. Shri Sunderial S/o Dhanaji Kalar, Aged about 45 years, R/o Dondi Lohara, Dist : Durg-(C.G.) ^ SECOND APPEAL U/S 100 OFJ'H^CIYIL PROCEDURE CODE --.A..-. HIWCOURT OF CHHATHS&ARH AT BZLASPUR AppelSant Respondents S.A. No. 24/200S Prakash Chand Join Vs. State of C,©,&another JUD^MENT (Passedon 15-04-2005) ^ia^ Dhirendra Mishra,J. This appeal has been preferred by the appeiiant against the impugned judgment and decree dated 11/10/2004 passed by Addi. District Judge, Balod in Civi! Appeal No. 43-A/99 by which judgment and decree dated 31/08/99 passed by CMJ Judge Class I, Balod in Civi! Suit No. 7-A/94 has been confirmed. The brief facts of the case necessary for disposal of this appeal are as under: 2. That, a suit for declaration and perpetual injunction was filed against the respondents on the averment that Govemment land bearing Khasra Nos. 1059 and 1077 (which was iater changed as 1328) area being 1.00 acre situated in Dondilohara was given on permanent lease for construction of cinema hall by Collector, Durg vide order dated 24/09/86 on premium of Rs. 6000/- and on annual rent of Rs. 450/-. After obtaining the suit land on lease the plaintiff started constructing the cinema hall. The defendant No.2 applied for lease of 3 decimal of the suit land. The appiication of the defendant No.2 was registered as a revenue case by the Tahsildar, Dondilohara and the case for allotment of the above mentioned land in favour of defendant No.2 was ISIegaliy forwarded by the Tahsildar to the Coi!ector through the SDO, Dondiiohara. The plaintiff objected to the allotment ' 4. —'^- of !and on the ground that the land in question was already allotted to him and the same cannot be allotted to the defendant No.2. The plaintiff subsequently amended the suit to the effect that in case defendant No.2 was found in possession of 3 decimal of the suit iand in that case the possession of the land should also be given to him after demolitjon of the iilegally constructed house. The plaintiff also averred that a legal notice dated 09/09/93 was also sent to the defendant No.1 as per the provisions of Section 80 of CPC. The defendant No.1 denied the plaintailegations and stated that no lease has been granted in favour of the plaintiff nor any construction has been raised by him over it. On the contrary, the defendant No.2 afl:er constructing a house in the year 1990 is running the business of motor repairing. The eviction proceedings were initiated against defendant No.2 and subsequentiy the defendant No.2 applied for settlement. The defendant No.1 denied that the iegai notice was ever sent by the plaintiff and submitted that the suit was not maintainabie for want of statutory notice as envisaged under Section 80 of the CPC. The defendant No.2 also denied the piaint allegations in the identical term as by defendant No.1. After framing of issues the piajntiff examined himself and his brother in law, Rikhab Chand Jain in support of his case whereas defendant No.1 examined Shri N.G. Chakole, the Clerk of the Tahsil Office, Dondilohara and defendant No.2 examined himself and the witness Chandresh Sahu, the Tahsildar, Tehsil Office Dondilohara. 5. The learned trial Judge dismissed the suit of the plaintiff by hoiding that the piaintiff did not obtain permanent lease of the suit land and further that the defendant No.2 did not appiy for allotment of 3 decimal of suit tand from the land ailotted to -3 -f2>- the plaintiff and accordingly it was heid that the plaintiff was not entitled for perpetual injunction and the suit was dismissed with cost. It wasalso held by the trial Court that the plaintiff did not send legal notice under Section 80 of the CPC. The trial Court also recorded a finding that document of Ex.P.1 is simply an int'imation of the order and not the grant of lease itself. The trial Court also recorded a finding that there was some interpolation in the document of Ex. P.1 as from the word (SRSTpft), letter (31), has been erased which is evident from the document of Ex.D.1 being the register of revenue case for the year 85-86 which shows that the plaintiff was given temporary lease for three years. Similariy the document of Ex.D.3 being the original intimation of the order dated 05/05/1987 conteins (3^a?pft MCCI), which also describes the allotment on 'temporary lease'. Similarly document of EX.D.5 and 6 bejng the proceedings of the Gram Panchayat also mention the temporary release'. 1—. 6. Thus, the trial Court arrived at the condusion that the document of Ex.P.1 is the intimation of acceptance of temporary Jease. The tria! Court also recorded a flnding that the plaintiff has failed to prove that he has deposited Rs. 6000/- towardsthe premium of lease and the documents of Ex.P.9 to P.11 filed by the plaintiff do not show that the aforesaid amount was deposited by him towards the premium. The trial Court also recorded a finding that the plaintiff has failed to prove that he was in possession of the suit land. The triai Court further recorded a finding that the land in possession of defendant No.2 is a different land to the suit iand which is evident from the documents of Ex.P-1 to P-3 fiied by the p!aintiff and by these documents it is established that the land encroached by the defendant No.2 is a different land to the suit iand and regarding which intimation of temporary lease was aiso given to the plaintiff -7 h^ ^ -^- and accordingly, it has been heid by the trial Court that the piaintiff was not entitled for decree of perpetual injunction. Learned trial Court also recorded a finding that no notice under Section 80 of the CPC was given by the plaintiff to the defendant No.1 and as such the suit was dismissed. The appeal preferred by the piaintiff was also dismissed by the first Appeliate Court recording the identical finding. 7. Learned counsel for the appellant submits that the findings of both the Courts below are perverse as the plaintiff has established by way of documentary evidence of Ex. P -1 and the documents of Ex. P-9 to P -11 being the receipts towards deposlt of the premium. that land was leased out to him. 8. It is also argued by the counsel for the appellant that the finding of both the Courts below that the sult was liable for dismissai for want of notice under Section 80 of the CPC is also misconceived as notice Ex. P -7 was sent through the registered A.D. on behalf of the plaintiff and therefore in the instant appeal the substantial question of law involved is "whether a notice of Ex. P -7 is a legal notice under Section 80 of the CPC are not and whether findings of both the Courts below regarding the situation of the suit land is based on misconception and therefore illegal, and whether the fsndings of both the Courts below are based on misreading of the evidencg and as such perverse". 9. Form perusal of the material avaiiable on record, the pleadings of the parties and the documents filed by the respective parties both the Courts below have arrived at the conclusion that ptaintiff has failed to prove that the land in question was given to the plaintiff on a permanent lease. This finding is based on the further finding that the plaintiff has deliberately made some interpolation in the document of ~tb IN^* Ex. P -1 being the intimation of grant of temporary lease and he has deliberately erased letter (SQ from the word (SRSTR}^ and thereby tried to make the lease permanent. The Courts below have recorded the concurrent finding of fact that the land in question was never leased out to the plaintiff and that he was not in possession of the sujt land and further that the land which was encroached upon by defendant No. 2 is a different land to the land claimed by the plaintiff and on the basis of the aforesajd concurrent fsndings of fact the suit of the plaintiff has been dismissed. There is nothing on record to establish the contention of the plaintiff that the above findings of both the Courts below are based on misreading of evidence and as such perverse, which requires interfer^nce by this Court at this stage. 10. In view of the aforesaid discussion this court is of the view that the judgement and decree passed by both the Courts below are based on concurrent findings of fact and they do not require interference by this Court at this stage. Moreover no substantial question of law is involved for adjudication of this appeal and as such the appeal is held to be devojd of substance and dismissed as such. 11. There shail be no order as to costs. 12. Consequently, M.C.P. No. 591/2005 and I.A. No. 1034/2005 stand disposed of. g^/. Dhirendra Mishra Judge '^0