iff^SSafeg tSS^SSy.&-S£WSSsni-w^ ^ /^fc^ 3N THE II3DH CQURT QF JUDICATURE .AT BlLASpUR (C.G,} • APPELL^NT ^IX'TNTS^ S.A. No.231 _/2003. Bil; $y Kanhaiya aged 58 years, S/o ^ Mohapat Satnami^ resident'of village Loharsi, P.H» No.17, Tahsil patan, Distt<, Darg (C^G^) Kg BS Versas RESPONDENT DEFEN@*NT~ ^ $. 1 (a) Kewara Bai'aged 45- years w/o Hari Ram Satnaml, 'esident of-village Sawani P.0. Tarra, Tah, Patan, Distt. Durg (C.G*) sl^ ..-••l^»^^ ...^.^ "^^ 1 (b) Kera Bax^ aged 42 ^ears, ' g^x/o Ram Khilawan Satnami, ^ ^> resident of village Nemai (Madaada), Bhilai^ Tah» & Distt. Durg (C*G.). 1 (c) S^^^;^^^d Samaru Ram» aged 24 years S/o Sukh Lal, resident of village Loharsi, 3'ah. Patan. Distt.Durg (CG). Besic3es. these ^e le.gal representatives of deceased, Shyama Bai and one more - daughter deceased Kekti Bai, •s- 2 Ghasiya, aged 70 years S/o Sukadi, resident of r" ^ village Loharsi, P*H^No<»17 Tah^ Patan, Distt» Durg (CG-) 3. .^" State of Chhattisgarh Through : Collector, Durg w^-' MEMOEANIXJM OP SECOND ApPEAL UND2R SECTZON 100 C,P»C _..^^^._ B: Rl 811li IMr IB 11 Bfil^ i8fil t%SI s^-^ .^*. ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar MisJira .*''-• Second Appeal No.371 of 2003 Kanhaiya versus Kewara Bai and others JUDGMENT Postfor 29-9-2010 1 Sd/- [ Prashant Kumar Mishra 1 Judge ^ HIGH COURT OF CHHATTISGARHAT^BLLASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Appellant Respondents Second Appeal No.371 of 2003 Kanhaiya versus Kewara Bai and others Present: Shri G.SAgrawal, Senior Advocate with Shri U.R.Koshaley, counsel for the appellant. Shri J.K.Gupta, counsel for respondents No.1(a) to 1(c). Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.3. None for respondent No.2. SecondADDeal underSection 100 oftheCode ofCivil Procedure JUDGMfeNT (Delivered on AT^ September, 2010) This is plaintifTs second appeal under Section 100 ofthe Code ofCivil Procedure, 1908 (henceforth 'the Code'). 2. The trial Court dismissed the plaintiff's suit for declaration of possession and permanent injunction andallowed the counter claim of defendant No.1 directing the plaintiff to deliver possession of the suit land to defendant No.1. The first appellateCourt dismissed the first appeal preferred by the plaintiff. 3. The plaintiff preferred the suit on the pleadings inter a//'a that his father had three brothers, namely, Mohpat, Ramadhin and Ghasiya. The plaintiff is the son of Mohpat and defendant No.1 Shyambai is the widow of Ramadhin. The original defendant No.2 is jjQhasiya. The present respondents No.1(a) to 1(c) are legal ^ representatives of Shyambai. Ghasiya is, in fact, the son of the second husband of plaintiff's grand mother, namely, Kaushalyabai. The suit land admeasured 3.17 acres. Plaintiff's father Mohpat predeceased Kaushalyabai, who died in 1958. After death of Kaushalyabai, Ramadhin and Ghasiyarecorded their names in the revenue records behind the back of the plaintiff as he was minor. About 30 years back, there was a partition between the plaintiff and the defendants in three equal shares. The plaintiff received 1 acre of land togetherwith 2rooms in the house, however, the revenue record continued to bear the names of the defendants. Plaintiffs prayer before the revenue Court for recording his name was not fruitful, therefore, the present suit was filed for declaration of title on 1 acre land out of 3.17 acres ofthe suit land. 4. Defendant No.1 denied the plaint allegations and stated that the plaintiff is not the son of Mohpat. It was also stated by defendant No.1 that Ghasiya is also son of one Bilwa, who was the second husband of Kaushalyabai and that Mohpat died issueless. According to defendant No.1, she is the only legal heir of Sukdi Satnami as the suit land was the ancestral property of Sukdi Satnami and was not the Stridhan property of Kaushalyabai, wife of Sukdi Satnami. 5. The trial Court held that the plaintiff Kanhaiya is not the son of Mohpat and is not entitled to a share in the suit land and recording of the names of Ramadhin and Ghasiya in the revenuerecords after death of Kaushalyabai was proper. It was also found that defendant No.2 Ghasiya is the son of Bilwa and he was not the son of Sukdi ^ \ ^^ ^ '^•-.^' ^ Satnami, however, it was found that defendant No.2 is the co-owner of the suit land along with defendant No.1. While dismissing the plaintiffs suit, the counter claim filed by defendant No.1 was allowed. 6. The first appellate Court has affirmed the findings recorded by the trial Court and dismissed the first appeal. 7. The following substantial question of law was framed by this Court for hearing of this second appeal: "Whether the lower appellateCourt erred in omitting from its consideration the ground urged by the appellanVplaintiff in first appeal that the trial Court was not justified in granting a decree for delivery of possession of the suit land Khasra No.345 area 1 acre to the defendant No.1, Shyam Bai?" 8. Learned Senior Advocate appearing for the appellanVplaintiff would argue that the first appellate Court has not at all considered the ground raised in the first appeal challenging the findings recorded by the trial Court and the decree passed on the counter claim preferred by defendant No.1. 9. Per contra, learned counsel for respondents No.1(a) to 1(c) has argued that the first appeal preferred by the appellant/plaintiff has been dismissed as a whole after considering the merits of the case, therefore, the findings and the counter claim, which were part of the judgment and decree of the trial Court, have also been gffirmed by necessary implication. He would submit that no /substantial question of law arises in this appeal. A ^. '^ll^, 1 ' ^^SMS^.^':. ^ .^.. ^ fc' 10. Both the Courts below have concurrently found that the plaintiff is not the son of Mohpat. There is no documentary evidence on record to prove that the plaintiff is the son of Mohpat. In his statement, the plaintiff admits that his mother is Basantabai, who was not married with Mohpat, but was residing with Mohpat. Learned counsel for the appellant/plaintiff has placed strong reliance on the statement of PW-2 Ghasiya, however, the Courts below have disbelieved the statement of Ghasiya on the ground; firstly, that he is son of Bilwa and is not son of Sukdi Satnami and secondly, the said witness obtained employment in the Bhilaj Steel Plant in lieu of acquisition ofland belonging to his brother-in-law Sukhlal. This witness has admitted that he remained in employment with Bhilai Steel Plant in the name of Sukhlal. The appellate Court has observed that a witness, who fraudulently remained in employment by impersonation, cannot be believed. 11. When the firstappellate Court has affirmed the most crucial finding in the case as to whether the plaintiff is the son of Mohpat and is entitledto his share of 1 acre land as claimed in the plaint and after examining the entire evidence afresh, has dismissed the appeal, by necessary implication, the finding recorded by the trial Court on all issues including the issue regarding allowing the counter claim has also been affirmed. Merely because the appellate Court has not specifically referred to the counter claim, it cannot be said that the said part of the judgmentand decree passed by the trial -pourt has not at all been the subject matter of the judgment idelivered by the first appellate Court. „ In paragraph 4 of the y c^^ impugned judgment, the appellate Court has specifically referred to the case of defendant No.1 and has stated that defendant No.1 has raised a counter claim against the appellant/plaintiff in the suit. 12. In view of the above, the substantial question of law is answered and decided against the appellant/plaintiff. 13. The second appeal fails and is hereby dismissed. There shall be no order as to costs. 14. A decree be drawn up accordingly. Sd/- prashantKumarMishra Judge Gopal ^