I. .<• •< / IN THEHIGH CQURT OFJUDICATURE AT BILASPUR FC.G.1 SECOND APPEAL No. / 2005 APPELLANT PLAINTIFF .<»•-• A.-- iV^ c^y l-c^\\>- 'ey •'ya;i W-- VERSUS l.Rasmaniya D/o Jaypal Aged- about 60 yrs. 2.Budi D/o Jaypal W/o faagu Aged-about 55 yeais 3.0aalo D/o Jaypal W/o Vishambhar, Aged-about 58 •t. years A1I are R/o Village- Bhagawan pur, Thana- Chalgali, Tahsil-WadrafNagar, Distt.- Sarguja [C.G.]. ^ l! \ i^" "ff RESPONDENT yDEFENDANT ,•<? -^..}' \^k 'rff^/ .•^-.g. Nl ^ o^ ^' ^.l.Kanchan D/o Jaypal, Aged- about 60yrs. 2. WChdhari D/o Jaypal, Aged- about 62yrs. 3-;Budawa D/o Jaypal, Aged- about 50yrs. All are the R/o Village- Bhagawan pur, Thana- Chalgali, Tahsil-WadrafNagar, Distt.- Sarguja [C.G.]. ,4;Runiya D/o Budhdhu @ Shudhdhu Aged-about 30 years R/o Village- Bhagawan pur, Thana- Chalgali, Tahsil-Wadraf Nagar, Distt.- Sarguja [C.G.]. ^ 5., State of ChhaUisgaih, Through- Collector / Sarguja [C.G.]. SECOND APPEAL UNDER SECTION_100 THJECIVIL PROCEDURE T- XI-HC-22 '3 r -i||'i|icl''l, aifll'y'is, facii'My sn^T^ii Pi-li* 3)1^1 ?h+lict> •^i^fl h tfltldl thlich 3|T^?T .tRq? _2>..^...;..s: "g^ 200 <r l^i^T' 31(^1'reiTWaf^I i:O.U4.ZUS '^i^Ftn'^'i 'tnT^ff -^ f^c^t" <r<ii^r< •^ sifigTi gii^i id c'dunsel for the appe!! Shri Akhil Agrawal, learned !f.L. forthe State/re: Hsard on admisslon. 2. ! The instant eivil appeal unfler Sectron 100 of the Gode of Civi! Procedure has been' preferred b!^'ths appellantSi'pialntiffs as they are aggrieved by the impugned jud^ment and decree dated 29.07.2005 Nstrict Judge ,(FTC), Ramanujgang, ^ and by •*'ilTich the appeal preferred by the judgrnent and decres dated ^A/96 by learned Civi! Jiidge, C!ass.-l, and the judgment and decree passed ib confirmed. (Parties hereinafter shail passed by learned Addftjona! Sargujaln Civil Appeal No. 96-A'O: the appe!!ants/piaintiffs ' agamst Qflg nassed in C.S No. 56^ ^ Tnf <W^ h ;] TU13 'Tt^' -U? if'*/ ^di. 'Ii^ •W ^IV Tlt/l fl « ? '''ap'*' = 'll?^ » l V't^ 1 •t Ramanujgang, has been dismisse< bv the Searned CNii Judge has b< se referred-to as oertheir deseriotiitn beforethe trial Court'i 3. The Dlaintiffs filed a civil iniunction and canceliatlon of gift same parents and they were resid[ The suit.property descnbed in sch^ the DlaintH'fs and the deferidants U then they were-in possession of independentiy. However, the def^ the suit property by practicing. frai iuit for declaration of tltls, perpetual eed. The case ofthe piaintiffs before » •s to the suit are descendants of the ng 'Mth Sheir parents as^Ghar Jamal'. duie 'A' was oraiiy partitioned between their mother Chando Bai and since heir respective shares and cuitivating idants got their names mutated over !d on the basis .of fabricated gift dee_d_ [1[fr^^fe^ /T XI-HC-22 T^ "11<11<VI<1, ®fl1«<IS,f»«vtl'M'i< 3ff^T TI5ra? A. HWW th*irai _.%:...6;.:...-SSB. •^I. 200 fq^ET' an^r^t k'ii* ari^r aiH ^TT sn^i TOirer'aftcT —3— c^l'4[^l4)T1 HIHtilf ^ fe^ if^f-WK ^7 aifSgir aii^i i •iy-'yT aiter geiiit !e possession ofthe su? theiir names mutatecl they iand- ;re trying 4. The defendanfs jn their WTitttn statements denied the averrnents in the plaint and stated S'nat plaintiffs F|io. 1, 2 & 3 and defendants No. 1, 2 & 3 belonged to the sa.me famiiy sreas plaintiff No. 4 (defendant No. 4 hereirt is not the membsr of thisj family. It was a!so dented that th' piaintiffs and the defendants resid^d togetherv.flth their parents jojntty, in their matrimori! ira r^«;i after thelr marriage ancl on'iy de deed dated Q9.06.1964 in favour c en there vas no' dispute betwei respect to the preperty belonging was any'partition of the suit pn defendants as c!aimec! in the olain tS Sli"@ iH P93C©TUIOOSS^S of gift deed executed by their fathej 5. On the basis ofplsadifigs o'| Court framed issues and after rei| the plaintiffs by recording a findinl ihat they are the ovmer and pos) threatened by the defendants to !{ and thev'have also failed fo provl Isndant No. 2 is residlng .in vjllage - loa! Gond executed a reaistere'd gift tf defendants No. 1, 2 and 3 and since t the piaintiffs and the defendants with Jaipa! Gond. It '.vas denied that there (perty ^between the plaintiffs and the |i. The possession ofthe piaintifFs over it was averre Tact: the ;ion over the suit property on the basis. Jaipal Gond. ' iive parties, the learned tnat lina evidence dismissedthesuit of that'the p'aintiffs have failsd to prove essor of the'suit property, they v«re e dispossessed frem the suit property that they are entitted for a decree of /T XI-HC-22 'Svf -4|.i|ic)<(, Esnal'M'iG, facii'yy WWIT th*1|ch 3nip?T Tra^? __.S.4A^^ "W^ 200 S- iss^vi' sn^r^ii h-U'h S^V sti^i^i •yfsa °bl^<fll +41^^11 ^ fe^ <ffl|<^l< ^? aifigiTsii^r perpetual injunction. IS vras als' prove th'at the gift deed dated 0| il.ega! and.the.suit filed by thei^ Accordingly, the suit'ofthe piaintii held that the plaintiffs have. failed to ICt^A fts:'sll»nori in'.t-hift nlsmf •">• ffs was di< barred .by law of limitation. rnissed by the triai Cour'i v/it'n 6. The piaintiffs preferredap; Judge vrfiich was also dismissed 7. TheinstanS appeal has foliowtng substantia! qyestions, of 1. , "Whether botli thi tt^ 1 it' 2. "Whether both. th •^u ier JaipE of Budhinaniya, 'iwit| to the execution ofl Budhmaniva at Shere being >d it is eyicN 8. Learned eounsel perusal ofthe gifl deed it i< }v,i thie'r father iate Jaipi CourSs, below have held thouah no issue was frarrt (ea'beforethe tearned Additionai District Nth an identical fin'ding: ! • |een preferred by the plajntjffs on fhe !a>,.v: Courts below 'A'ere com ' Courts below were correct in ed ludgment and ciecree holding |iout maklng any issue wth regard 3akshishfiama by Jaipal and that nd Ruchan Is tiie same person, any evidence?" ipeiiar'iis.'piainims SUDHIIIS inai nt that the same v/as aiiegedly execu'te lya. .Mo'*Jever, tne :,•, irh^ '?; sd by the trial Court, therefore, finding /" T- XI-HC-22 sn^i^i R-li'* ail^T 5b+ll<n ^(f?^ h 's^l •^w\v\li, 9'iAwiG, hviwy. sn^T 'WSR Sx.;.£l.;..$OT............^_ „„ f- 200 ^ tlltR-IT »*<ich "n ^S^ET' STI^T'?raTW(rf?tf ^-- the Courts beiow in this regardl 2 as proposed, is made outfor^ 9. Learned frial Court.white deal affirmative by recording afinding inl chl14[d'lf1-r1 TnTI^f ^ fec^ <fa-^.l< ^; 3Tpg»T3D^I is erroneous and substantiai question ing with issue No. 5 - whether the.suit aw of limitation, has answered in the ter alia that the oiaintiff witness No. 1 namely Gaio has admltted in her ^ross examination that her father.had executed the sale deed with respectto the whote iand in his life time and in pursuance of that their names v^i present there along with a!l of her ; that land revenue is belng paid by and they are in possession of the Runiya (Piaintiffs' Witness No.2). wrtn Civi! Judge sale deed was executed on 09.0( continued to be recorded in the re Court beiow has not committed any ^re mutated.and at that tjme she was fisters. The pi.aintiff has also admitted :he defendants since last 20-25 years 10. On the basis of statements of the las arrived at the conclusion that the .1964, Ihe names of the defendants venue records since 25.03.1965 and the plaintiffs were aware of the ab^ve transaction from ths inception and thus they have filed the suit after 3p years of execution of the sale deee .5aw of iimitatlon. The piaintiffs wsre i within three years from the date of which is on the face of it barred b<^ required to chaitenge the saie dee): execution. The above findlng has 9; impugned judgment whereby th4 mihutely discussing the evidence ^vailable on record has held that the instant suit fiied by the plaintlffs w^s barred by iaw of limitetion and the illegality in dismisslng the suit. {"liw t^i^r-i /T^ XI-HC-22 sii^i^iT WM sn^i' sh^i^ •M^a Yt^y^ F ^ ^ ~3 r';qra?F(, »Ta1'y'.is, fsK'ii'yy HWWI aiiich 3T[^?T •q^T _tS..^^>A..Sr&. "^200 fq^ET' 10. ' So far as the second su|tstantlal question of law a ppe!!ams?p!i the basis of evidence availa ucmmaniya u fact Rucha'n, therefore, thfepou the Courts belowthat Budhman chi^^Tifl^ <HW(^T "^ Fs^ <^n-^.i< ^; sipgii aii^r ?, r-irrsnfs^j i-:? ;^i vi^ concerned, both ,the Courts below |3le on record have recorded a fiitding of saie deeci-was executed, is in ,irt is ofthe opinion that the finding ofboth uchan are She same person are the finding of fact and no sub.|tanti'al question of law as,proposed by ?een made out for adjudication of' thh Ivs H'snA-< ounsel tor tne appeilants, nas 11 at the motion sts.ge itselfand ai vieVi' of the above dis Afrtir1 :usslons, i am of the considered opinion ofmerits 'Atiich dsser'/es to be dismissed, sordingly, the same Is dismissed. Sd/- Dhirendra Mishra Judge [Tft^^f^ s'