a' u^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR ^SingIeCeiich SECOND APPEAL No. ^ /2Q09 APPELLANTS 1DEFENDANTS) ......^s.^ ^^.^^.p-- ^^^' o^-""'" RBSPONDENTS (Plaintiffl 1(9) 1 (a) Smt. Sarita Jaiswal, Wd/o Omprakash Jaiswal, aged about 50 years, l^(b) Dr. Amit Kumar Jaiswal, S/o Late Omprakash Jaiswal, aged about 29 years. Sumit Jaiswal, S/o Late Omprakash Jaiswal, aged about 21 years. All resident of Kamthi Line, Rajnandgaon (C.G.) 2. Shyamlal Jaiswal, S/o Late /" Lalram Jaiswal, aged about 60 years, R/o Near Shitla Mandir, Dhamapur, Distt. Jabalpur (M.P.) VERSUS a— l(a) Amrit Bhai Ratel, aged v^'~ about 50 years. l[b) Prabhudas Patel, aged ^ about 49 years. Both are S/o Late Shivdas Bhai, R/o Shivsan Saw Mill area, Rajnandgaon (C.G.) 2,. Sanjay Chopra, aged about ^" 50 years, S/o Umendchand Chopra, Sadar Bazar near Purani Kotwali, Rajnandgaon (C.G.) ^^""" SECOND APPEAL UNDBR SECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908 HSGH COURT OF CHHATTISQARH AT BILASPUR Sincile Bench: Hon'ble Shrl Justlce Prashant Kumar Mishra Second Appea! No. 384 of 2009 Smt. Sarita Jaiswai and others Versys Amrit Bhai Patel and others ORDER PostforlC-04-2010. Sd/- Prashant Kumar Mishra Judge ts^-04-2)10 .^r^,. ff3^.^. s\ 1 HIGH COURT OF CHHAmSGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra APPELLANTS rPEFENDAMTS^ RESPONDENTS (Piaintim Second Appeal No.384 / 2009 Smt. Sarsta Jalswal and others. Versus Amrit Btei Patel and others. Smt. Renu Kochar, counsel for the appejlants. Shri Mano] Paranjpe, counsef for She caveators/respondents. SECOND APPEAL UNDER SECTION 180 OF THE CODE OF CIViL PROCEDURE ORDER ( (^^.04.2010$ The appetlants/defendants teve preferred the Instant second appeal under Section 1W of C.P.C. to chaUenge the judgment and decree passed by the first appeliate Court affirmlng the judgment and decree passed by the trial Court ctecreeir^ the plalntiffe'/respondents' sult for defendants eviction, restoration of possession and damages. (2) The ptalntiffs' preferred the sult against the defendant No. 1 Om Prakash Jaiswal (appetlants No. 1 , (a) (b) (c) belng hls iegal hstrs) and Shyamlal Jatewat on the pteadlr^s that sn the oral partition dated 08-06-1973 between the defendants and thelr brothers, the sult property felt jn the share of Sate Heera Lal Jaiswat. The plaintiffe purchased the property from the tegat heirs of Heera Lal Jatewat vide registered saie- deed dated 24-03-^)03, however the defendants remained In possession on a smaSt part of the suit property by establlshing one ftour mll! (Aata ^hakkl). The defendants, at the time of execution ofthe sale-deed by the teaal heirs of Heera Lal Jaiswal in favour of the DlaiRtiffe. stated that they ..-.-^ ^y-Jj \.^/ ^ shaIE remove their possessfon as and when asked for by the piaintiffs and^ for the present they may be altowed to operate the flour msli. The pialntiff permitted them to remaln In ^cupation for some time however when at a later point of time they were asked to vacate and handover possesslon, they refused to vacate the premlses. (3) The plalntiffe served a tegal notice dated 2Q-CQ.-2QQ5 to the defendants asklng them to handover possesston to the ptatnttffs Immedlately after 15 days however when the dernarel was not honoured the present suit was fited on 25-Q4-2€X)5. (4) The defendants, in their written statement denlsd the pSalnt aStegation and stated that the legal heirs of Heera Lal Jaiswa! had no authority to execute the saie-deed In favour of the plaintiffs and that the sult has not been properiy valued as per marteet vatue of the property. SignificantSy the defendants have not asserted any t'rtle In themselves but have stated that the legal helrs of one Virendra Kumar JalswaS have preferrecS another sult because whsle executlng the sate-deed In tavour of the plaintlffs by the legai heirs of Heera LaS Jaiswal the consent of Sega! helrs of Virendra Kumar Jaiswal were not obtained nor they are signatory to the sale-deed. (5) The trial Court decreed the present suft In favour of the plalntiffs. The trial Court found that the plaintiffs are ent'rtied to recover possesslon and that the suit has been properiy vaiued. The trial Court ateo tound that the defendants are Iteensee and thelr possesslon Is IISegat after service of nottee by the pEaintlffs asRlr^ them %o handover vacant possesslon. ^y-^.. ^-^:t&,^ '-^,. /€^m..\ "vf!r./' '^^i, <'^ ^ sw ^g^^l^^UB^ (6) Tte appellate Court has affEnr^d the judgment ar^S decree passed by the trial Court. (7) CounseS for the appellant has argued that the suit was not properiy valued and that slnce In the other suit preferred by the legal heirs of Virendra Kumar Jaiswal the sale^teed In fsvour of the pSaintiff ss in questlon, the Instant sult coutel not have been decreed. it has aiso foeen argued that the legal heiiyof Vlrendra Kumar Jaiswal are necessary parties. (8) The su'rt snstituted by the plaintlff for evtetlon of the defendants and obtaining vacant possession is cn the basis that the defendants belng licensee of the erstwhite owner of the property from whom the pSaintiffs have purchased the property by sale-deed dated 24-03-2003 and the plalntiffe havlng pemt'stted the defendants to remaln In occupation for sometime, the defendants are Steensee on the suit property and once they have been asked to vacate the premises by servlr^ a legal notlce and after terminatlng the tteense, the present suit for possession has besn vatued properly in view of the taw Said down by A!R 19@4 Jsmmu and Kashmir 99 {V S1 C 35^ Tff. Milka Ssngh and OthQrs Vs. Th. Dians and Others. tn the saNi case it has been held that a sust asklng the Iteensee to handover the vacant possession Is covered under Section 7 (Jv) (d) of the Court Fees Act and the plaintiff ©at liberty to put any valuation that he likes and the Court fee has to be paki on such valuatlon. tt has further been tteld In the said judgment (by Hon'bSe S. Murtaza Fazt All, J.) that ly^sQfe a llcenser approach^ the Court wlthin a reasonsbie time after the / llcense is terminated he is entitled to an Injunction, on the otherhand, If ^.^fe-—,,:^ -<;.A " r^^^: ^ ^^1-- .^ 7 ^UfHfHM. the licenser causes huge delay, the Court may refuse the discretion on the ground that the ficenser had not been dif^ent and tn that case, the licenser witl have to bring a suft for possessfon whteh vsntl be govemed by Section 7<v) of the Court Fees Act. In such event the plasntiff may be required to pay ad-vaforem Court fee on the market value of the property. In the present case the plalntifrs have averred In para 4 of the plaint that legai notlce was served on 28-02-20€% (Ex. P/3) anct the suft has been preferred on 26-04-2CX55. The sult has thus been presented with'sn reasonable time or rather s^rtty after the period mentioned In the tegai notice explred. It is Shus tourrf that the suit preferred by the plaintiff has been valued property and the Court of Civil Judge Class -1 had the pecuniary jurisdictton to try the sutt. (9) Argument regarding non-josnder of the legal helrs of Vlrendra Kumar Jatewat Is of no sybstance because they are not In possesslon of the property nor they have ever approached the Court for thejr Impleadment. Similarty argument regardsng the suit belng not maintainable sn view of the pe^ency of other suit wherein the sale-deed dated 24-03-^03 Is under challenge, atso has FMS substance Inasmuch as the present defendants have not preferred the saKl suit. Sf the lega! heirs of Virendra Kumar Jaiswat succeed in their su'rt they shal! definttely be entltled to claim the rellef whteh they have prayed In their sult anct ali consequences In law shatl follow. In any case the ptaintiff havlng not daimed any title in themselves, cannot fall back on the shoutder of the tegat helrs of Virendra Kunr^sr Jaiswal to raise a substantial question of ^ / law when In fact no substantlal questton of law Is arislng for determination ''•ftVlsi" f ^^, '"^ ...../;>' ^^^r^^^'' In this appeal the present suit ss slnfipty based on retationshlp of licenser and Iteensee and both the Courts teve concurrently decreed the sult. (10) The instant second appeai does not involve any substantsa! questlon of $aw; it is therefore dtemlssed at the admlssfon stage. Sd/- Prashant Kumar Mishra Judge