( a( ^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPURJCGJ SECOND APPEAL N0. c(/?> ? QF 2006 APPELLANT : DEFENDANTNO.l ^tiJ^ ''/ 'A'f ^-•-':^"^/~' y»v" RESPONDENTS PLAINTIFF 1N. 3anakram, aged about 61 years, Son of Manrakhan, Resident of Village Dandgaon, Tahsil Mungeli, District Bilaspur (C.G.). VERSUS Hemandas Sonof Bachcharam, aged about 35 years, Resident of Village Dadgaon, Tahsil Mungeli, District Bilaspur (C.G.). ^ DEFENDANT N0.2 State of Chhattisgarh, Through: The Collector, Bilaspur (C.G.). SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908 -I_CS. -^=-=—-^cc:^^^n- cn / COURT OF CHHATTISGARHAT BILASPUR us iecond Appeal No. 431/2Q06 as anu anomer Postfor ^8-08-2010 Sd//- Prashant Kumar Mishra Judge fc .'''iSf~°^t "s •is^'. -s-^/ Hon'ble Shri Prashant Kumar Mishra M £. Apjiearance; Shri K.S. Kurre with Shri G.P. Kurre, counsel for Shri Vishnu Koshta, counsel for respondent No.l Shri Ajay Dwivedi, Deputy Government Adv State/respondent No.2. appellant. for the ( ^y .08.2010) This appeal under section 100 of CPC has been preferred by the defendant No. 1. in flie suit against whom the first appellate court has passed a decree for pailition and possession of 1'2 share in the suit property to be delivered to the plaintiffy'respondent No. 1. [2) The case of the plaintif£ Hemandas vvas that his father Bachcharam was married with his mother Manchan Bai in Churiform. The suit land belongs to his father Bachcharam and after his fathers death in 1974 lus name was recorded as owner ofthe land intiff, his father in the revenue records. According to Bachcharam subseqiiently perfbrmed illegal marriage witl Janakram's (defendant Mo.l).mother Nagmat Bai and by taking benefit of this factiial position he got recorded his name in the revenue records, tfaough she was not entitled to get her aame , recorded. Altematively, the plaintiff stated that even ifNagmat Bai is ...sssss-e—•••!•"" ^•^,-* ^^^^^. tei' '--:>.;gs\ gs f^-^^"" ^f -2- ultimately found to be legally married wife of his father Bachcharam, he is entitled to l/i share in the suit property, however in 1995 tlie defendant created obstruction in the plaintifFs enjoyment of the suit property, Aerefore the present suit was filed in the month of September, 1995. (3) Case of the defendant was that the plaintifFis not the son of Bachcharam and Manchan Bai and that Nagmat Bai, mother of defendant Janaki'am and oae Sona Bai were wives of Bachcharam and were living witfa Bachcharam in his house and after death of Bachcharam as his widows; they are still residing in tlie house of iachcharam. According to the defendant, Manchan Bai was not legally married wife of Bachcharam, therefore, the plaintiff is not entitled to decree as prayed for in the plaint. (4) The trial court dismissed the suit after holding that the plsiiitiff has failed to prove that Bachcharam and Manelian Bai were mairied. (5) The plaiutiff preferred the first appeal which has been allowed by the impugned judgment and decree. The first appellate court on re- appreciation of the entire evidence has recorded the finding that the was the son of Bachcharam. For recording this finding of fact the first appellate court has discussed the statement of witnesses in detail fi'om para 6 to 20. The first appellate court has obsenred that in addition to the statement of plaintifFs witaesses, two of the defendants witnesses namelv Hariram and Nathulal have tumed s and have stated in their evidence tfaat the plaintiff is the son of ^ ,>--t;: ^iS^ssS^^ -3 -^ (^ Bachcharam. The appellate court has also coiisidered the transfer certificate of the plaintiff Ex.P-1 which is document dated 27/03/1995 in wluch his fathers name has been recorded as th Bachcharam. The plaintiffhas passed 5 class examination in 1974 which is mentioned in his transfer certificate. Thus, in view of the entirety of evidence, the appellate court has rightly concluded that the plaintiff is the son of Bachcfaaram. This court has also examined tlie record and has found tliat the finding recorded by the first appellate court is based on appreciatioa of evidence of witness and is not pen'erse. ;6) Leamed counsel for the appellant has argued that the first appellate court has committed error of law by reversing the judgment delivered by the trial court and that the suit is barred by limitation. The trial court found the suit to be bai-red by limitation on the ground that liie name ofJanakram came to be recorded in 1986, therefore the suit should have been preferred witSiin three years after 1986. The appellate court has found that the suit is within limitation. Tlie suit preferred by the plaintiffis for^partition and possession. For seeking relief of possession the period of limitation is 12 years under article 64/65 ofthe Limitation Act. Name of'Janakram came to be recorded in the year 1986, therefore the suit'for possession could have been filed by the year 1998. Tlie instaiit suit has been preferred on 19/09/1995. Thus, the mstant suit for possession have been preferred withm 12 years from 1986, thus, it is within limitation and the findim -^- recorded by the first appellate court that the suit is within limitation is found to be legal. (7) Learned counsel for the appellant has relied on AIR 1950 PC r? - >2 (1) M.P.L.J. 335 to argue that substantial question of law is arising in this case as statement of witaesses and the evidence in favour of the appellant has not been properly given effect to wlule recording the finding. Having examined the material on record, this court would fmd that the finding as to whether the plaintiff Hemandas is the son of Bachcharam is a pure fmding of fact. The first appellate court is Uie final court regarding fmding of fact. The first appellate court has dealt with the entire evidence in detail and has thereafter recorded this finding in favour of the plaintifF. Learaed counsel tried to re- appreciate the evidence in course ofargument, hovvever the same is not permissible in exercise ofpowers under section 100 ofCPC. (8) In ll.l' »CC 92 the Siipreme Court has held as to what is a substantial question oflaw and wlien it can arise in a particular case. Wlien the facts of the present case are applied to the law laid dovvn by the Supreme Court, this court would find that no substantial question of law is arising for determmation in this appeal. (9) Consequently, this appeal fails and is hereby dismissed at the Imission stage. Sd//- Prashant Kumar Mishra Judge