IN THEHIGH COURTOFJUDZCATURE OF CHHATTISGARH AT BILASPUR • ^s-^. S.A.No. M4<f /05 APPELLANT PLAINTIFF RESPONDENTS j^y ^ ^\/ /^^ /<-^ A11 above R/o. Jaimura Tahsil Kharsiya, '<t<?'^'' ^^. />fe^'District Raigarh (C.G.) ^^ ^ Ratna Bai Wd/o. Khageshwar Patel, Aged about 70 yrs, R/o. Vill. Jaimura, Tahsil and District Raigarh (C.G.) VERSUS Gaurishankar S/o. Tularam Mahant, Aged about 32 years, Shivanlal @ Chhotu, S/o. Muku, Aged about 38 years, Chhumukdas @ Rohasu S/o. Mumudas, Aged about 35 years, Kenkra Bhatia @ Kheekdas S/o. Badridas, Aged about 35 years, 5] State of Chhattisgarh, ^" Through: Collector, Raigarh, District Raigarh (C.G.) 6] Meera Bai D/o. Khageshar Patel, Wd/o. Late Salikram Patel, Aged about 35 years, R/o. Village Raigarh, Tahsil and District Raigarh (C.G.) ^SCOND APPEAL UNDER SECTION 100 OF CTVIL PROCEDURE CODE sw.^^te,».*^;^^.-*...>. ^3 AppeSIant/ Plaintiff HSGH COURT OF CHHATTISGARH AT BILASPUR SA.No. 449 of 2005 Ratna Bai VERSUS !:/ Respondents/ Defendants 1. Gaurishankar 2. Shivanlai @ Chhotu 3. Chhumukdas 4. Kenkra Bhatia @ Kheekdas 5. State of Chhattisgarh 6. iVleera Bai Appeilant by Shri IVIanoj Pararsjpe, Advocate. ORDER (Passedon^-11-2005) Dhirendra Mishra. J This is the appellant's/plaintiff's second appeai as Civii Suit No. 101- A/2002 filed by the piaintiff was dismissed by the Ciyil Judge, CIass-!, Raigarh by the judgment and decree dated 05.02.2004 and his first appea! Clvi! Appea! No.5-A/2004 was further dismissed by the iearned First Additional District Judge, Raigarh. (Parties herelnafter sha!! be referred to as per their description before the trial Court.) 2. Case of the plaintiff before the Courts beiow was that he fiied a sult for deciaration of title and perpetua! injunction in respect of property described in the schedule annexed with the piaint averring that the property admeasuring 0.08 decimal was purchased by his father in the year 1941 by unregistered saie deed and slnce then his father and after his death, he was in peacefu! possession of the same. However, in May 1995 the defendants starled claiming that they have been aliotted that sult property by the Tehsiidar on Patta whereupon the ptaintiff obtained a certificate of confirmation of possession from the Gram Panchayat. The defendants forcibiy entered in the suit premises in October 1995 and damaged the house of the plaintiff. The incident was reported by the 3-1 o^ 6. pialntiff to the police. The defendants denied the atisgation of the plaint and stated that the land in question was not Abadi land as ciaimed by the plaintiff and he was never in possession of Khasra No.304/2(K), in fact the !and in question belonged to late Tutaram and they inherited the same after the death of Tularam which was subsequentiy partitioned in two parts i.e. Khasra No.304/2(K) and 304/2(Kh). The area of Khasra No.304/2(Kh) is 05 decimal and Abadi iand bearing Khasra No. 304/1 (K) is adjacent to this land. On the basis of the pieadings of the respective parties, iearned tria) Court dismissed the suit by recording a finding that though the piaintiff is in possession ofthe suit property since 1941 after purchase in the year1941 but he is not the titie holder of Khasra No.304/2(K) and therefore, he is not entitied for perpetua! injunction or for any damages as ciaimed. The iearned first appe!!ate Court confirmed the judgment and decree passed by thetrial Court by recording a finding that the plaintiff has faiied to prove that Khasra No. 304/2(K), area 0.08 decimal was purchased by his father vide document of Ex.P/2 and that in fact the land bearing Khasra Nos. 304/2 (K) and (Kh) belonged to one Gaurishankar. Learned counsel for the appeilant/plaintiff has chal!enged the above concurrent findings of both the Courts below on the ground that the findings of facts recprded by the Courts beiow Is pen/erse. It is submitted that both the Courts beiow have failed to appreciate the orai and documentary evidence avaiiable on record in its correct perspective and committed a material srregularity by decreeing the suit even after holding that father of the plaintiff had purchased the land in question vide saie deed dated 24.05.1941.The proposed substantia! questions of !aw have been given in paragraph-7 ofthe memo of appeal. Learned counse! for the appellant/plaintiff relying upon the judgment reported in AIR 1988 SC 1858 in the matter of Dilbaarai Punlabi V. Sharad Chandra submits that the High Court is duty bound to examine the entire relevant evidence on record which has a direct bearing on the Q< — ^ disputed issue and in appropriate cases concurrent findings of facts can alsobe set aside. 7. Further relying upon the judgment reported in AIR 2090 SC 426 in the matter of Sshwar Dass Jain (dead) throuah LRs. Vs. Sohan Lal fdead) bv L.Rs it is argued by iearned counsei for the appeliant that where the fjndings of the Court of fact is vitiated by non-consideration of reievant evidence or the finding is based on erroneous approach to the matter, the High Court is not preciuded from recording proper findings. 8, Learned counsel for the appeiiant further piaces his reiiance on the judgment of the Supreme Court in the matter of Yadarao Daiiba Sharawane fdead) bv L.Rs. V. Nanila! Harakchand Shah (dead) _and others reoorted in A!R 2002 S.C. 2849 and submits that where the judgment of the fina! Court of facts is based on mislnterpretation of documentary evidence, or on consideration of inadmissible evidence or based on ignoring material evidence, the High Court in second appeai is entitled to interfere with the judgment. 9. I have heard learned counsel for the appei!anfc/p!aintiff and perused the materiaj availabie on record. 10. Both the Courts below have dismissed the suit on the basls of analysis of orai and documentary evidence availabie on record. The conciusion of the trial Court which has been subsequently affirmed by the learned first appellate Court is based on the finding that the piaintiff has not fiied any document to show that the land bearing Khasra No.304/2 (Kh) is Abadi land whereas from the document of Ex.D/1 and D/2 the land in question is a Bhumi Swami tand of Gaurishankar. The above finding is based on the admission of the plaintiff himself that he had never purchased the disputed !and and the name of the defendants are recorded in the revenue records. The Courts beiow have a!so reached to the conclusion that the plaintiff is in possession of 9.5 decimal of !and and It is not the case of the piaintiff that he purchased the larger area then the iand in his possession. 11. However, in the instant case the findings of both the Court be!ow of fact is based on sound appreciation of the evidence on record and is further ^ •k based on the admission of the plaintiff himseif and thus in the aforesaid circumstances, the ratio of law iaid down in the aforesaid judgments cited by learned counsei for the appeiiant/plaintiff have no appiication whatsoever in the present set of facts. 12. The findings of the tria! Court is based on the appreciation of ora! and documentary evidence availabie on record and also on the admission of the piaintiff himseif. The iearned triai Court passed the judgment after marshailing the evidence cn record and the iearned first appeilate Court after considering the grounds raised by the piaintiff affirmed the judgment and decree passed by the trial Court rejecting the suit of the piaintiff. The plaintiff has not been abie to show any pe^ersifr^ in the findings of both the Courts beiow. 13. Thus in the opinion of this Court, no question of law much iess any substantial questions of law as proposed by the appeiianVpiaintiff is invotved for adjudication ofthis appeai and the appea! being devoid of any merits desen/es to be dismissed and the same is accordingly disrnissed at the motlon stage itself. Sd/- Dhirendra Mishra Judge ~ «<;^TTT?2DO^—-