i.iS ia3?S;=@ ^.'^^'•H^' IN THE HIGH HON'BLECOURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. ^ / 2008 APPELLANTS Defendants ^^.- ^c^ ..-•^y'^v ^y^A ^ A' <5^ 1. Smt. Mantora widow Motilal, aged about - 55 years, Occupation - Agriculturist, R/o.- Village- Jartaga, Tahsil- Kota, Distt.- Bilaspur (C.G.) 2. Radheshyam, S/o Motilal, aged about 35 years, R/o Jartaga, Tahsil- Kota, Distt.- Bilaspur (C.G.) 3. Daulat, S/o Motilal, aged about 10 years. 4. Dinesh, S/o Motilal, aged about 12 years, Appellant no. 3 & 4 through his legal guardian mother Smt. Mantora Bai widow Motilal, aged about 55 years, R/o Jartaga, Tahsil- Kota, Distt.- Bilaspur (C.G.) 5. Jagnnath S/o Dhanaaram, aged about 40 years. 6. Sanukram S/o Dhanaaram, aged about 38 years. 7. Tularam S/o Dhanaaram aged about 35 year, All caste by Yadav, R/o Appellant No. 5, 6 & 7, Village Jartaga, Tahsil- Kota, Distt.- Bilaspur (C.G.) VERSUS RESPONDENTS Ghashiram Yadav, S/o Dular Yadav, aged about 35 years, caste Yadav, R/o Village - Banka, Tahsil- Pali, Distt. - Korba (C.G.) present address Village- Chhattona, Tahsil Kota, Distt. Bilaspur (C.G.) Plaintiff Dhanaaram S/o Dular Yadav, aged about 25 years, R/o Sirishdhid, Tahsil- Kota, Distt. Bilaspur (C.G.) Plaintiff Smt. Kunti, D/o Motilal, W/o Balla, aged about 45 years, R/o Village Jhigatpur, Tahsil- Kota, Distt. Bilaspur(C.G.) Defendant Smt. Rambati, D/o Dhannaram, W/o Ramcharan, aged about 32 years, R/o Village Nagchui, Tahsil Kotal, Distt. Bilaspur (C.G.) Defendant Ghanshyam, S/o Motilal, aged about 30 years, Village Jartaga, Tahsil- Kota, Distt.- Bilaspur (C.G.) Defendant 6. Dular, S/o Tulsi Yadav, aged about 55 years, R/o Village Chhattona, Tahsil - Kota, Distt. Bilaspur (C.G.) Defendant 7. State of Chhattisgarh Through - Collector Distt. Bilaspur (C.G.) Defendant SECOND APPEAL UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE !1»i HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.193 of 2008 Appellants Respondents versus Smt. Mantora and others Ghashiram Yadav and others Present: Shri Pushpendra Kumar Patel, counsel for the appellants. Shri Sanjay S. Agrawal, counsel for the caveators/respondents No.1 and 2. Ms. Sangeeta Mishra, Panel Lawyerforthe State/respondent No.7. Second Appeal under Section 100 of the Code of Civil Procedure ORAL ORDER (Passed on 10th March, 2010) Learned counsel for the appellants is heard on admission. 2. The present second appeal has been preferred by the defendants in the trial Court. The plaintiffs/respondents No.1 and 2, namely, Ghasiram and Dhanaaram had preferred a suit for declaration of their title as also for a declaration that recording of the names of defendants No.1 to 10 in the revenue records be declared as illegal. According to the plaintiffs, the suit property is their ancestral property, which was earlier recorded in the name of Tulsi, the father of defendant No.11 Dular and thereafter in the name ofdefendant No.11 Dular, who is the father of the plaintiffs. In December, 2003, defendants No.1 to 10 raised a dispute on the ground that in the revenue records, their names have been recorded, therefore, the plaintiffs will not be allowed *)> UN 3& to cultivate the land. After verification of the revenue records, the plaintiffs preferred the suit. 3. Defendants No.1 to 10, in their written statement, while denying the plaint allegations, raised a counter claim for declaration of title and also a decree for permanent injunction to restrain the ptaintiffs and defendant No.11 from interfering in their possession. 4. The trial Court dismissed the suit and allowed the counter claim on the ground that the names of defendants No.1 to 10 continues to be recorded from the year 1975 onwards, which gives rise to a presumption of their lawful title over the suit land and that defendants No.1 to 10 have proved that Tulsi had transferred the property to Dhanaaram. The trial Court was of the opinion thaton applying the principle of preponderance of probabilities, the right of defendants No.1 to 10 over the suit property appears to be stronger. 5. The appeal preferred by the plaintiffs under Section 96 of the Code of Civil Procedure, 1908 has been allowed by the impugned judgment and decree, as a consequence fhereof, the suit stood decreed and the counter claim raised by defendants No.1 to 10 stood dismissed. 6. Learned counsel for the appellants argued that the first appellate Court should not have interfered with the reasoned judgment and decree passed by the trial Court. He further submits thgt on the basis of the document Ex.D-1 (Ikrarnama), the land was transferred to Dhanaaram and in any case by Ex.D-1, it was endorsed that Tulsi had earlier sold the property in favour of Dhanaaram. 7. On perusal of the record, this Court finds that the interference made by the first appellate Court with the judgment and decree passed by the trial Court does not call for any interference in this second appeal. The fulcrum of defendants No.1 to 10's case is the document Ex.D-1 and the entries made in the record of rights Ex.P-1 in their favour. It is not in dispute that the property belonged to Tulsi and thereafter to his son Dular and thereafter to Dular's sons Ghasiram and Dhanaaram, the present plaintiffs. It is also not in dispute that thereis no registered instrument executed by the owner of the property at any point of time in favour of defendants No.1 to 10. It is settled law that rights and title to an immovable property, having value of more than Rs.100/-, can only be transferred by way of a registered instrument, as required under Section 17 of the Registration Act, 1908. In the absence of any registered instrument, their claim to the property has rightly been negatived by the first appellate Court. The principle of preponderance of probabilities applied by the trial Court has no application in a case where the title to the property at the beginning is not in dispute and the only dispute is about the validity of its transfer being made in favour of a party without any registered instrument. 8. In the opinion of this Court, the judgment and decree passed by the first appellate Court has been passed on correct appreciation and application of the law applicable in the facts of the case. There being no substantial question of law arising for determination in this second appeal, the appeal fails and is hereby dismissed at the admission stage. ?~ Sd/- Prashant Kumar Mishra Judge Gopal