^-Wi-^ff ...'A^"... y.'--:"^" .^' -^^ .•••' ^•<.l^y^--"" 9..^ ,.-.;. "^ . -.« IN THE HIGH 01URT OF JUDICATURE OF C.G. AT BILASPUR !~-^-^' •- APPELLANTS RESPONDENTS .,0^ \;J, -/ ^y ^•xP' ^^^ S.A. NO.^OS /20_07 WQ?!!R Herss'! S^y^^ ^j^sss^ (<) Jai Sai, S/o Late Sunder, aged 35 years, (2) Ramjatan, S/o late Sunder, aged 45 years, (Both are R/0 village Satya- Nager, Tahsil Surajpur,Distt. Sarguja (Chhattisgarh). VERSUS ^ Baj Nath, S/o late Bager Sai, aged 60 years, (2) Indra Kuaari, widow of Dhan- / Sai, aged 32 years, (3) Rajesh Kumar, S/olate Dhan- Sai, ageel 18 years, (4) Tirath Prasad, S/o late Dhan. Sai, aged 7 years, through gaardian mother Indra Kumari widow of late Ohan Sai, aged 32 years, (5.) Geeta daughter of late Dhan- Sai, aged 21 years, Jugal, S/o Rajnath, aged 35 years, Tilak, S/o Rajnath, aged 21 Y years, (,8V Chhotu, S/o Rajnath, aged 21 years, (All are resident ef village Satyanager, Tahsil Surajpur, Distriet Sarguja, C.G.) (PLAINTIFFS) (9) Parbatiya, D/o Bager Sai, aged : 52 years, R/o village Kusmi, Tahsil Surajpar, District Sarguja, Chhattisgarh. (DEFENDENT N0. <^) (10) State of Cfahattisgarh, Through Colleetor Sarguja Anbikapur. (DEFENDENT NQ^@) (PERFOBMA DEFENDENT) SECOND CIVIL APPEAL UNDER SEGTION 100 OF THE CIVIL PROCEDLEE CODE. / HIGH COURT OF CHHATTISGARH AT BILASPUR Sinate Bench: Hon'bte Shri Justice Prashant Kumar MJshra Swond Apoeal No. 205 of 2007 Jai Sai and another. Versus Raj Nath and others. ORDER Postfor-1402-2010. Sd/- prashant Kumar Mishra Judge •••^ HIGH COURT OF CHHATTRGARH AT BILASniR SinateBench: Hon'bte Shri Justice Prashant Kumar MiShra Appellants Respondents Second Appeal No.205 / 2007 Jai Sai and another. Versus Raj Nath and others. u-'^•^ Shri J.S. Barafc, <»i» dforthea(^)e|lants. Miss Sharmila Singhai, counsel forttie respondents No.1 toQi, Shri Vinod Tdam, P.L.forth^respiondentNo. 10/8tate., None appears for respondent No. 9. Apiwal Under Sectton 100 ofthe Code ofCwilProcedure ' a ORDER ., . - •- > - s^ (^4^~.02.2010t The appellarts have f»eferr«lthe present Secpnd Appeal egainst the concurrent judgment and decree passed by the*<Sourts below who have aUowed the plaintiffe / re^ondents No. 1 •to T^ suit for declaration of titte on plaint Schedute 'A' land and ftx prese^ion of ptaint Sclredute 'C' land as ateo a dectaration to the etect that the deed of partitton dtd. 31-01-19S3 (Ex. D/1) and the sale^leed dtd.«2(MX3- 1991 are Ulegal. (2) The original plainUffs Raj Nath, Dhareai, Jigal.TUak and ChMe have preferred the instantsutt for declaratiw of thejrtitle; OTiplajrt Schedide W land, possesskm <rf plaint Sch«lulel'Cfelarrely-«for declaration that the partffion deed dtd. 31-01-1983 (Ex. 0/1)sand the r^istered ^ile-deed dhi. 2003-1991 (Ex. D/2) are illegal and dso for issuance of permanent injura^iOTi to restrain the defendants from entering into the lands covered in Schalule 'B', 'C', & 'D' with the pteint. Ttw sirit was fited with respect to the property in Schedule 'A', on the allegation that the suit land is the acquired property-iofntate ;.M -A- Bansram whrch was received by Ws two sons namely Bagar Sai and Ja^ir Sai in succession and after their death has devdved upwi the present plaintiffe. The plaintiffs betong to Kanwar tnbe having a cu^can that the wife and the unmamed daughters have rigW'oft maintenance birt no We. Mst. Naan, vrtdowof Jagar Sal had flgM ©f nraintenance over the property after death of J^ir Sai and after her: death the prqaerty belong to plaintiff Ivwever the deferalant No. 1' taking benefit of the bodity and mental condiUon of the plaintiff No.1 broight him to Surajpur and got executed a deed of partition dtd. 31- 01-1983 (Ex. Dl\). As per the partBion, Schedule 'B' IEBKIS wa-e all<rtted to plaintiff No.1 and Schwlule 'C' lands were allotted to the defendart No. 1 however, since the defendants donrt belongstothe' family of the plaintiffe there was no question of entering wiUi a-partition with them. The defendant No. 1 later on pCTSuaded the plaintifls to handover the land covered the Schedute 'C' to the defendant No.1 on tease and he continued to remain in possesston of th^e'tands^anel" ultimsrtely he got recorded his name in the revenue record. (3) Itwas^atedintheptaintthatoneParbatiyavirtiowasimpleaded^ as defendant No5 in the trial Court i^ the si^er of plairtiff No.4'and after marriage she has no title over the property; Late Naan Bai<ljeds <wi May 1991 and was critteally ill ax morths before her death. Onthe pretext of her treatment, the defendant No.1 took her to AmMkapur and got executed a sate-deed in favour of defendant Np.2 on 20 ^|iyt£ •S'S^Wi^S^^ 1991. Thissale-deKlisaresultoffraiKlcommittedbydefendantN@i4* ^upon late Naan Bai and as suchthe sale-deed is illegat. ^.•^•^w^,^ ^y...,-^"^s^ ^/^ \1 ^ ""S3€^^^^ -^ J/ ^'^y •sa.gsss?-'' -T,- (4) Tlw detendants No. 1 to 3 in their commw wrifterTstatement ctesnied the plaint averments and stated that the plaintiffe as well as the defendants belwig to one fainily and they are govemed by Hindu ciatoms and rttuate. AccOTding to the defendants they are descendents of tate Heera Lal who was the brother of tate Basram however siiwe late Basram was the Karta of the family the suit land was recorded in his name at the time of survey settlement in Surguja State. According to the defendants the parties are jointly entitled^o and owners of Schedule W land and that the deed of partiB<m dtd; 31-01-1^3 is a valkl documerrt. Sunilarty the sale-deed dtd; 20-03-1991 was executwi by late Naan Bai vreis mentalty frt and healthy and that she has execyted the sale<leed witti respect to 1 Schedule 'D' property as st»was a need of money. (5) DefendantNo.SPaibatiyaadmittedtheCTitiresuitandstatedthat she has relinquished her right in the su'rt pr<^)erty in favourof ptaintiff No.1 Ra) Nath and she was t«Aconcemed with the suit. She admitted ttet as per the custom prevaiKig in the Kanwar trtoe the wife / wklow and manied daughtere do not get any share in the property ofthe father, therefore, late Naan Bai had no right, titte or interest in'the suit prqaerty. She disputed the de«lof partition (Ex.P/1) as well as the sale-deed(Ex.P/2). ^ (6) The treil Court by its judgment and decree dtd. 24-02-20(0 held that the suit prc^erty was theself acquired property of late Bansram and that the lands of Schedute 'C' has been ill^ally possessed by the '•> \defendant No.1. The trial Court declared the exclusive ownershjp^of ^-^aaisf-^ ^y\ //i ,1;' i li|! ^. . .^ /•.' ~!fy-^s£-yfy ^"1 / -^ the plaintiff on j^aint Schedule W property and declared the deed of partition (Ex.P/1) and sale<leed (Ex.P/2) as illegal. (7) WhUe ctecklirg issue No.1 r^arding the nature of property 4he triat Court dtecussed the statement as ateo the defendants avermerrts made in the written statement that the land was recorded in the name' of late Bansram Trom the time of survey setttement of Surgup Strte, to hoW that the sutt property was self acquired property of tate Bansrann. On issue No.2 the trial Court recorded the flndii^ that the plaintiffe have failed to prove that they are govemed by own custun and <m the basfe of inclieion of the name of defendant No.5 Parbatiya who is the sister of plahitiff No.1, in the revenue records, it was found that theywill be govemed by Hlndu Succession Act. Shnilariy findii^ on issue No.3 as to the illegal possesston of defendant No.1 have ateo been recorded after appreciation of the oral evklence. The valklity of thesale-deed (Ex.P/2) was tried as issue No.4 and the validlty of thedeed <rf f»rtition (Ex.P/1) was tried issue No.6. BcAhthe tesues have also been deeMed in Tavour of friaint'rff and against the defendants. tt is the fyvSng of the trial Court that since late Naan Bai was not the exclusive owner but she was one of the co-owner of the plaint Schedule 'A'property,the sale- deed (Ex.P/2) executed by her alohe is illegal as she coukl n<A haw executed sale-deed of any specifK; stiaire of land beloi^ing to the jpint family. It was found by the trial Court that since the defendantsNosl to 3 dkl not bdong to the family of tate Bareram the deed of partition i.e. 31-01-1983 te ill^al and that the plaintiffe are the exclusive owner of the pteint Schedule 'A' property. -^ffiK^., ^' ^. 'k^/ '-?"- (B) The lower a^ellate Coyrt has CTUtfirmed the fimBng reeorded^ the trial Gourt <m all issues. The tower appeUate Court have also discussed the evklence availaMe on record and e^reed / concurred vrith the findings recorded by the trial Court. Thus, on all material issues i.e. r^arding the nature of land, the titleofthe plaintifls, the valtelity of the deed of partitioin and sate<leed, there is conGuirent findir^ recorded by the Courts below. "< (9) Leamed counsel fur the aj^eyants has argued that the trial Court has not framed proper issues fpr ad^idteatkin of the suft and that grant of lease by the plaintiff to the defendant No.1 in Schedule 'C' property wouWI amount to accrual of Bhopmiswaml righte in favour of the defendant No.1 by virtue of Sectipns 168 & 169 of Chhattisgarh Land Revenue Code and ateo aigued that suft was barred by limitation: (10) Havirg perused the rerord, thte Cmirt tmds that the issues framed by the trial Cwrt for trial in the suW have been framed in accoidance with the pleadt(^|s made by the parties. The appellants never made any effort in thetrial Court under the provfeiCTis of Order 14 Rute 5 of C.P.C. for franui^i of addiUCTial issues, iretead they partfcipated in the trial and were aware of the issue involved »nthesuit^ thereftwe at the sts^e of Secpnd Ap(»altt»eappdlants are nol entWed to raise grounds or sutetartial questkm of law regardirg'improper Traming of issues. Similarty the accrual of Bhoomtewami right in the Schedute 'C' reads by virtue of Sectiore 168 and 169 of the C.G. Land ^ Revenue Code has ateo not been pteaded by the defendantsin Uiefr wrttten statement. The afqaellant cannrt be allowed to raise a point which was (wver an issue before the Courts below and on'whteh J\ ^^.';. /. '."•f^. "•«:•> ^fri "^ r:-'rt".'^^^ S£sA parties have not been granted any opportunity to tead evidence. Regarding limitation the trial Court had framed issue No.10 arwl it has been found that the suit fited on 08-07-1992 is not <mly fw declaration l»itateo for possessron for which the period of UmitatiQn is 12 years under Articte 65 of the Limitation Act. (11) The deed of partitionis of 31-01-1983, therefore, thesuit filed CTI 08-07-1992 is within 12 years. Thus, ttere is no error in the fincUng recorded by the Courts below that the suit is wttWn (imitatiwi. (12) In the case of State Bwik of fndia and others \fs. SMGoyal, (2008)8 SCC Hon'bleApex Court haslakl down the primipte asto what is substanlial question of law. Para 13 of the juc^ment is extracted herein below:- "13. Second ajqoeafe would Se in cases wh Hwotue sufcs<anferf guBsCons of iaw. Tihe wwd "substar^aT pnsffxed to "yuesSon af taw"ckws not*®ferto (he stakes inwlved in ffie case, nor intended to refer wdy te ^uesfons af law <rf generai/ * s wnjoortance, bi^f^arstoimps^weffBctofffieques^inaflswon (he cfecfsfon m tte fis ftetween ff»partfes. "Sufcstertfa/ guestrons frf law" nwans not tinty substanSal qiw^ons af lem afgeiwral hnportorKe, but afeo substenterf qruestion (rf law arisng m a case as b^ween ff»epariies. In W»contesd of Sectton 100 CPC, any quesSwi of Isw wtueh aflfecte (he Snal dedsson in a case w a @ stAstanfe/ guBstton <rf <sw ss betwew? <he pariies. A guestfon<rf law tWwrft a»isesiiwktwiWy or coteteraUy, hewng no beavingon (heffna/ofricome, wttlns^lieasitostanSalque^oitoflaw. Wwie Wwfs is a dear and s^tted eiwnciaSon on a cy.iesSon af lew, by ihis Co(fftortiy<ft®H(ghCourtconcemectU caiyx^ be sakl that S the case inwdves a siAstanfisrf guesffon <rf few. ft fs safcf ff»ata sub^anM quesVon oflaw ariseswhen a quesSon oftew, whfcft is iKrifinallys^leclbyWsCourtfwbyttwl-SghCowtaMcemedso w as Ae S(ate (s conoemed), arises fty ccosfderaBon <n (te case. But ihis stafement has to be urKJerstood in tt»coirect (^m' •-^:.:'^.^:WN. '••.i"^^// -7- perepecffve. Wwre fheie is a ctear enunciaSon of law and ihe fcwer couit has foffowed <»•lighUy qsjofed such cleev enundation of law, obvtousty ff»®case will not be consfatered as gmng rise te a substerrttaf guestton <rf few, ev»»if fce guesfon of (aw may be one <rfgeneral (ffywriance. On tte otber Aand, ff (here (s a ctear enunaatton oftew by ttus Court fort>y (he Wgh Court cofKwned;, but (he fower court had ignwwi or misntefpfeted or nwsapptod tf»same, and coirect apfriicafkwi af (be (aw as decfared or enunciated by ffius Court (or <h®High Cowt concemed) woufcf have ted fo a dWferenf decfsibn, (he appea^ would Hwolve a sirivstanttal guestfon of tow as faetween ffw parifes. Even where ffiwe te an enunaatwn of (aw by ffio Court <or (he H(£tf»Court CCTwemec^ and ff»same bas feeen foVawed by (he towercourt, ff the afyeHant is a&fe to perauacfe (he H(E(h Court <hat <fte enunuafed legal positfon needs reconsKtera(Jw», aflerartbn, modffcadon or cfeirifcatfon or tbaf fftere *s a need to resoh®an appeuent conffict behveen (wo wawpaints, can be said ffwta sulwfanfia/ guesfon of tew anses for consicterafon. There canmrf, <he»sfore, fte a sfra^actet d^niSon as to wheo a sub^anMqiwsSonoflawarisesinacase. Betftafasffroay." (13) The appellants, in this appeal, have failed to demonstrate any substantial question of law for detemmation. This Court, in exercise of jurisd'ictfon under Section 100 of C.P.C. is not enttUed to interferewith the concurrent findii^s of fact unless a sub^antial question of law arises for determination. (14) In the result there being no substantial questton of tew invplved in this appeal, the Second Appeal feiBs arolis hereby dismissed, Sd/- Prashant Kumar Mishra Judge tUBUto