‘v{ i' HIGH GQURT OF CHHATTISGARH BILASPUR. $.A. No. 60. of 29a3 Single Bench: Hon’ble Shri Dilip Raosaheb Deshmukh, J. Appiicants : 1. Sint. Gayatri Devi Agrawai, widow of iate Lakheshwar Prasad, aged about 55 yrs. R/o Shivarinarayan, Distt. Janjgir Champa. 2. Ayush Kumar (minor son) late Lakheshwar Prasad aged about 11 years Rio s’hivrinérayan Distt. Janjgir-Champa (Cb) Vs. 1. Nanci Kishora son of Mohan La! Gupta, aged about 64 yeara Rio Kharora, Tahsil — Baloda Bazaar, Dist: — Raipur. 2. Suresh 50:1 of Mohan LaL aged about 59 years. 3. Kamla Bai widow of Hari Kishan, aged about 64 years. Prabhakar SJO Hari Kighan, aged about 47 years. rafui, S/o Hari Kishan, aged about 43 years. Praveen 5/0 Hari Kishan. aged about 28 years. Vishnu, S/o Hari Kishan, aged about 28 years. Radhe Sio Hari Kishan. aged about 25 years. Ali residents of Mahantpara, Shivrinarayan, Tah-Navagarh, District-Janjgir-Champa (C.G.) 9. State of Chhahtisgarh acting through Coliector, Janjgir — Champa (C.G.) $E$OND CIVIL APPEAL UNDER SEQTION 190 OF GIVIL PROCEDURE CODE u‘ Present: Shri K. A. Ansari, 3r. Advocate with 5hri Sayed imtiyza Aii. Counsel for the appellants. Shri Rajeev Shrivastava, Counsel for the resoondent No.1 on caveat. Shri Akhil Agrawal, P.L. for the State/responoent No.9. ORDER (Pas5ed on 1G.O5.2007) Heard on admissien. 2, There is a noncurrent finding reserded by both the Courts beiow that the§iransa¢tion éated 28.10.1974 was. a nominai transaction and that the resnondent No.1/plaintiff had in fact obtained a ioan from the appeiiapti’defendant Lakheshi/var Prasad whiie executing the document. 80th the Courts beicw have also recefded a concurrent {inding that the appeilant/defendant herein had faiied to prove perfection of titie over the euit land by adverse pdssession, The hndings mentioned above recorded by both the Courts below are purely findings of fact, based on proper appreciation of evidence oral a$ well as documentary on record. 3. Shri K. A. Ansari, learned $r. Advocate for the appellantidefendant contended that eince no issue was framed by the trial Court on the nature of the transaction dated 28.10.1974 or on the question of adverse possession cf the appellant/defendant, the judgment and decree was liable to be set aside and the matter remanded to the trial Court for framing of issue. However, from a perusal of the record, it is clear that the parties went to trial fully knowing the rival case relating to the nature of the transaction dated 28.10.1974 as also the question of adverse possession raised by the appetlantldefendant and had led all the evidence not only in support of their contentions but in refutation of those to the other side. ln such a situation, it cannot be said that the absence of an issue was Jfatal to the case or that the trial was vitiated. Placing reliance on Nedunuri Kemeswaramma v. Sampati'Subba Rao AIR 19$3 Sf; 884, l am of the considered opinion that absence of issue-is not fatal to the case in the aforesaid situation. /’ / 5, In this manner I am of the considered opinion that no substantial question of iaw an$es for determmatmn m this appeai which I$ accordmgly n ‘WMRMWM k m / dismissed at ihe $tage cf adm4ssm Sd/— Dilip Raosaheb Deshmukh i Judge