^ •• .^"< -€ ^^ JN THE HXGH COURT OF JUDIC^TuRE' AT BILAS-PUR(CHHATTISGARM) SEGOND. ^PPEAL N0. ,^L) l| OF 2003 / .APPELLANT /TPLAINTIFF ) 5 ^ Baldu^son of paldu,aged about 48 years^ Caste : aahis»occupation- Labourer^resident of Viliage~Bayang» KjLrodimalnagar,Tehsil and Bistriot Raj.garh,(C.G<) V E R S, U % RBSpGliOBNTS ^l,^ : A{>hool Cfoana.son Qf paldu,aged about "/'' ' 55 years. ^ ..<^M ^"'('^^^ 3.<, c\©v^Q ^ Qopi^son of Phool Chand,aged about 32 years^o Both are residents of Village- Bayang»post-Kachhar,Tehsil and Dlstrict-Raigarh,(C.G,) Stat@ of Chhattisgarh,through Collector»Raigarh» District-Raigarh, (CoG,) SECOND AppEAL UN&ER SECTION 100 UF C.P.C< ../-.• __^.<fL^ Appdlanl/ Plaintiff Second Apoeal No.644 <rf 2003 Baldy Respondents/ Defendsnks Vs Phool Chsnd anct others. Appellant by Shri H.S.PateJ. Advocate. JUDOEMENT (Deliwred on 24 (W2006) Heard on admission. Z The appellant has preferred this second appeal against the orcter dated 16.09.2003 passed by llnd A.D.J., Raigarh in Chril Appeal No. 79-A/2002. arismg out of the judgment and decree dated 30.09.2002, passed by IVth Chrit Judge, Class-11, Raigarh. (Parties hereinafter shall be descrtoed as per their description jn the trial Court.) 3. Both the Courts below have dismissed the sutt of the plaintiffby recording a findlng that the plaintiff has fatled to prove that he is the owner and possessor of the suit properiy and he has further fafled to prove that defendants have encroached upon Ns house and propealy. Accordingly, the suft has been dismissed by the trial court whteh has been subsequentty conffrmed by tfie first Appellate Court. 4. During pendency of the appeal, the plaintiff filed an applioation under Order 41 Ruto 27 <rf the C.P.C. for permission to fite documents being certified copy of Khasra Panchshala for the year 2001-2002 of tend bearing Khasra No. 226/1 areaG.376 acne and Panchnama prepared by the viHage Patwari and the first Appellate Court dismissed the above applteation preferred under Order 41 Rule 27 ofthe C.P.C. and further dismissacl the appeal ofthe plaintiff. 2- — S. Leamed counsd for th® appeManypJaJnttff submits ttat plaintjff and defendant No. 1 are real brothers and they were residing together tn the suit accommodation after purchasinfl the same from one Munu Kumar some 35 years back. However, some 15-16 years back. the plaintiff teft the suit house and came to Raigarh for eaming Ih/elihood. The ctefendants taking advantage of absence ofthe plalntifF encroached upon thesutt propertyand dispossessed him. 6. Both the Courts below has disregarded this fact that the suit property is the joint property which is existing on the Abadi land and therefore, no record of right could be submitted by the plainttff. However, the suit has been dismissed onty on the ground that no record pertajnjng to the title of the property has been filed by the plaintiff and ^trther that on the date of filnig of the suft, the plaintjff was already dtspossessed. Onthese two grounds, the suit has been djsmissed by both the Courts below. As the sujt is for perpetual injunctjon and in the absence of possession or title, the decree of perpetual injunctlon cannot be passed in favour ofthe plaintiff. 7. I have heard teamed counsel for the appeUant/plaintjff on admfesion. & Both the Courts below have arrived to a conourrert finding of faot that the plairrtiff as faited to establjsh that he is the owner of the sutt accommodatton and the plaintjff and respondents/defendants are jojnt owners of the suit property by adducing ar^ document. Further finding of bc^hthe Courts betow is that on the date of institutjon ofthe suit, the ptaintiffwas already dispossessed. 9. Taking into constderation the above concurrent fincHngs of facts of both the Courts below and ftirther that there is no substantiat questlon of law invoh/ed in this appeal for tts adj'udicatipn, I am of the opinion that the appeat has t@ be dismissed at the motion stage itself and it is dismissed accordingly. 10. However, there shali be no order as to eosts. Sd/- Dhirendra Mishra Judge ^-