-?S^^^-^.i-;;-t^c^/^rw^i?^fl^,oi®? iSS^^ IJ'.l«,(!<!al IUfl| IN THEHON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. A:s,<3 /2007. APPELLANT RESPQNDENTSZ l^ \^^^ ...-•3'fr^^ ^.^:^^ft\^"" ^-\^^ Chhotelal S/o. Parasram Satnami, aged about- 47 years, R/o. village Ranisagar, Tahsil Kota, Distrcit- Bilaspur (C.G.) VERSUS Ramgopal S/o.Malikram Brahman, aged about 50 years, R/o, Kota, Tahsil- Kota, Distrirt- Bilaspur (C.G.) Lakhanlal s/o; Gaya Prasad Gupta, aged about 48 years, R/o. Kota Tahsil Kota, Distt. Bilaspur (C.G.) Arun Kumar Duglash S/o. 3. Duglash, aged about- 45 years, R/o, Kota, Tahsil Kota, District- Bilaspur (C.G.) State of Chhattisgarh Through :- CoHector, Bilaspur (C.G.) Seconr' Appoal aaainst the iudaement and decree ;d bv Shrpp laideep Viiay Nimorka, VI^th. Additiopal ni.itrict Judqp Bilasour in Civil Appeal No. 1 iy/'>nn6 on 8^/8/07 dismissina the aDDeaU_= Arising out of the judgement^and decree passed by •^ ^y 4. ^^l^i HK3H COURT OF CHHATTISGARH AT BILASPUR Sinate Bench: Hon'bte Shri Justice Prashant Kumar Mishra SECOND APPEAL No. 439/2007 APPELLANT RESPQNDENTS Versys Chhotelat Ramgopal and othera. Shri Srikumar Agrawai, Sentor Advocate with Shri M.K. Bhaduri, counse! for the appeilant. Mlss Sangeeta Mishra, Panei Lawyer for the Stete/respondent No. 4. ORAL ORDER (12.11.2010) Plaintiffs suft has been dismissed by the Coutte beiow. Piaintiffs ciaim for dectaration of titie and recovery of possesston was based on the pteadings ttiat the suit land bearing Khasra No. M^1 and 30/2 was mortgaged to ths defendant No.1, who promised that the tand wouid be retumed as soon as the ioan is repaid, however the defendant No.1 sterted assertins his title and got mutsted hfe name in the revmue records and iater on soid it to the defandant No.2. According to the plaintiff the iand beiongs to the joint family, ttierefore, the sale-deed executed in favour of defendant No.1 on 3^* July, 1986 and 04-04-1987 couid no! have been made by one mernber ofjoint family. (2) Both the Courte betow have fwnd that in the eariier suit bstween the rnembers of ttie family defendant No.1 Ramgopa! was not made^a party. In the decree passed in the eariier sust it was mentioned that fce parties to ttie suit name'iy Chhoteiai, Bhojwa, Punoutin Bai and Kunjram shall be entitled to % share each in thesuit tand excluding the lands admeasuring 61 decinial '^ from Khasra No. 30/1. This excfusion of 61 decimai was made because it II,, :IIU"1 '•'•^ " - .2. " waa sold in favour of present Ctefendant No. 1 Ramgopat and defendant No. 3 Arun Kumar Duglash wth whom the pfainttff tateron entered into a compromise. (3) Both the Courts below have concurrently found that the plaintiff was aware of Uie two saie-deeds and yet the defendant No.1 was not made a party in the eariier suit nor a declaration was sought therein ttiat the sate- deeds are nominal and not real one. On appreciation of evidence both ttie Courte beiow have aiso disbelfeved the ptaintiffs case of mortgage of the suit iand in fav'our of respondent No.1. it has aiso been heid that in the ateence of a prayer for cancetlation of two sale-deeds the suit merety for declarauon of titie is not maintainabie. (4) On j»rusai of the record, this Court is not conwnced with the argumsnt rateed by the ieamed counsel for the appellant ttiat the eariier judgment opwates as res-Judfcate in the preseni suit and the ptaintiffs suit shouid have been aitowed. Adrnittediy, the defendant No.1 was not a patty in ths eartier suit. Findsng to the effect that the sate-dseds dated ^' Ju!y, 1986 and 01-04-1987 were genuine transaction recording an out an oui saie and were not a nominal or shame transacfion is findinfl of fact which cannot be ciisfajrtied in the second appeal. (5) No substantiai question of taw arises for determinatton in this second appeai, which fails and is hereby dismissed. No order as to cosis, Sd/- prashant Kumar Mishra Judge 1^.