BEFORE THE HIGH COURT OF CHHATTISGARH AT BILASPURo S 6A.NO., . 4%2g .OF 2004(SB) . ‘ APPELLANT Vy) Balakram, aged about 62 years: ‘y$AxNTIFF S/oo Dhundha Uraun, ‘R/oa VillO Golabuda, Tah. Dharamjaigarh, Distt . Raigarh, (Chhattisgarh) a RESPONDENTS /DEFENDANTS ( Smt” Matiya Bai, aged about 47 years, D/oo Anju Uraun. z) Smt. Munni Bai, aged about 50 years: D/oe Anju Uraun. . ' 3) Smt° Remni, aged about 42 years: D/oc Anju Uraun, All Agriculturist by profession R/O. Village ’Lipti, Tahsil Dharam— Jaygarh, Distt. Raigarh (C.G¢) . 4) State of Chhatifi‘sgarh: through : Collector, Raigarh (CaGJ a 5) Chaitram, agedv‘about 57 years,$‘%b Dhundha Uraun. 6) A9 Smt. Gurubari, aged about 72 years, Ix D/o“ Dhundha. B. Smt, Mati Bai, aged about 70 years. : D/og Dhundha Smt. Foolo Bai. aged about 52 years, D/o. Dhundha. Smt Bubiya Bai, aged about 59 years, D/o: Dhundha. E. Smt. Deo Bai, aged about 57 years, ' D/o° bhundha. Smt. Matia Bai, aged about 54 years. D/o. nhundhaJ col’ltc‘i. . .2. . . ,1 @ //2// R/o‘ village solabuaa, Tahsil Dharamjaygarh, Distta Raigarh K (Chhattisgarh) . V SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVILiggcmUREL 1908 g HIGH COURT OF JUDICATURE AT BILASPUR (CG) Second, Appeal No.433,’ 2004 Balak Ram Vs: Smt. Mariya Bai and others JUDGMENT Post for a} 01.2005 I/ r Sdl- l Sunil Kumar Sinha Judge ® HIGH COURT OF JUDICATURE AT BILASPUR (CG) Second AEEeal No.433l 2004 \ Balak Ram Vs. Smt. Mén'ya Bai and othsrs 1 V ‘ Shri B.R. Ghosh and SultMeera Jajswal, counsgl for the appcllant. JUDGMENT 1 (B 01.2005) Sunil Kama: Sinha, Jl Heard on tha question of admission. (2) One of‘the plaintiffs has filed this appeal u/ s 100 of the Code of Civil Procedure against. the impugned judgment arid decree dated 15.5.2004 passed in Civil Appeal Ne.3—A/ 2003 by the Nth Additional Distu'ct Judge (F.T.C), Raigarh (CG), aiising out ofjudgment aiid decree dated 31. 10.2002 passed in Civil Suit No.87—A/ 1998 by the Civil Judge, Class—I, Dhaiamjaigarh, Distt. Raigarh (CG). (3) The brief facts of the case are as under : The plaintiffs filed a suit for declaration of title and confirmation of possession in relation to the agricultural lands (10 plots admeasiiring 10.797 hectares) described in Schedule— A of the plaint. The plaint allegations are that late Kole Uraon was having his properties in village Lipti and village Golabuda; He had two sons namely Dhundha Uraon and Anju Uraon. i x l The lands of Village Lipti was partitioned between the two I brothers in which the half sham allotted to Anju Uraon was given under a will to defendant no.1 and the remaining half share was in possession of his brother namely Dhundha. There is no dispute about the property of Village Lipti. Fmther allegations are that since late Anju Uraon was having no male issue, he has adopted the plaintiE no. 1 (Chaitram) as his son who was looking after his maintenance. Dhundha died on It is the specific pleading bf the plaintid's that the entire 1and of village Golabuda shown in Schedule-A of the Plaint was received in partition by Dhundha who remained in exclusive possession of the same.- After the death of Dhundha on 12.12.1970, the plaintin‘s also came in exclusive possession as his successors and the defendants or late Anju were hayjng no right or interest in the said property. They also pleaded that since the plaintiffs and their predecessors were having exclusive possession over the suit land from 30-40 years back, they have perfected their title by way of Adverse Possession. They further pleaded vide para 9 of the plaint that on 15.51984 a Panchayat was held in village Lipti and in the said Panchayat, a Sahmati Patra was executed by Anju. According to this document, he had\agreed for deletion of his name from the revenue records of the suit lands, that is from the lands of village Golabuda, however, due to mistake of the document writer, the same was denoted as a gift deed which is not correct. Therefore, on the basis of this document also Whatever :12.12.19’ZO and Anju died on 17.5.1985. ‘t I4) contentions of the plaintins. It was pleaded by them that no such adoption had taken place in the family. Neither there was any such. partition in the family in which the lands of Schedule-A were allotted to the share of late Shri Dhundha, nor they were having the absolute possession on the suit lands so as to perfect their title by way of adverse possession. They also denied the factum of village panchayat and also the 1‘} factum of execution of any such document in the said 1 Panchayat which can be said to be the Sahamati Patra or a document of surrender. (5) case and after recording evidence of the parties dismissed the . z suit holding that the plaintiifs could not prove partition as has been alleged by them. They have also not proved that they are in exclusive possession of the suit properties and have perfected their title by way of adverse possession. The factum of adoption was also held to be not proved by the plaintiEs and liJ i, right was acquired by late Anju in the properties of Schedule-A of the plajnt, that was suITendered in favour of the' phintiifs, therefore, the plaintins are the absolute owners of the Suit property. The cause of action arose when after the death of Anju, a mutation was recorded in the names of defendants also on 05.7. 1985. The plaintiHs claimed that they are the absolute ‘owners of the property on the above grounds, therefore, a decree to the said effect be passed in their favour. A o The defendants flled their written statement denying the -«-.\ The learned trial Court named various issues in this V (8) @ -Lf, the factum of sunender of tight by Anju in favour of Dhundha was also not established. ' (6) Against the aforesaid judgment and decree passed by the trial Court, the plaintid‘s d1ed an appeal before the lower appellate Court. The lower appellate Court dismissed their appeal and confirmed the judgment and decree passed by the trial Court. It is against the said judgment and decree, one of the plaintiffs has hled this second appeal having lost in both the courts - . ('7) Learned counsel for the appellant submits that the Icoults below erred in law in holding that the plaintiffs could not establish the factum of partition in the family in which the lands of Schedule-A of the plajnt were allotted to their share. He further submits that a valid adoption as well as continuous possession resulting into perfection of title by way of adverse possession has also been established. He also submits that the execution of a document in relation to surrender has also been established and the courts below erred in law in holding that the same has not been proved to create any absolute right or interest in favour of the plaintiifs. «at 1 .N I have heard learned counsel at length and have also perused the impugned judgment and decree and the records of the two Courts below. ‘ The flrst plea in relation to adoption is based upon no evidence on record. Para 8 of the Judgment of the trial Couxt deals with this matter. A simple statement has come from P,W.1 Balakram. There is no other evidence on record in this regard which may suggest that in fact, the deceased has adopted the phintiE no.1 as his son. Neither the plea of physical act of giving and taking is taken nor the same has u . ‘lbeen tried to be established in accordance with law. In the above facts and circumstances, the adoption as has been . alleged by‘ the plaintiEs, has not been established and the courts below committed no error of law in holding the same as E l not proved. (9) 5(10) The plea of partition hasalso been considered under i reply to issue no. 1 and except a bald statement‘of the plaintiif, ithere is no other reasonable evidence on record to hold that r i l there was a partition in the family and in the said partition, the ‘; lands of Schedule-A of the plaint were allotted to the share of . late Dhundha excluding the right and interest of Anju in it. ~ (11) Now coming to the arguments about perfection of title by ‘ adverse possession, this Court can only say’that the law is well settled on.the point. Between co-owners or co-sharers there .~\ could be no adverse possession unless there has been a denial of title and an ouster to the knowledge of theother. No x comprehensive formula can be framed to test whether the possession of a co—owner‘in a particular case is adverse to the l l t l > t l t l y I t x t l other. The denial of title and the animus to hold adversely I should, however, be clear and evidenced by unequivocal Please see the decision of High Court of MP. reported in 1992 MPLJ Pq¢79 (Beharilal, s/o Randal —Vs- Jagannath, s/o Ramlglj. Dealing on the same point, His Lordship has further reiterated Vide para 14 of the judgment qelying on the decision of the Calcutta High Court reported in AIR 1930 Calcutta 466VAbdul Wahed —Vs- Mohan Bashi Saha arid others) that “the knowledge of exclusion from joint family property or the ouster may be proved directly or inferentially". The proposition laid down in the above judgment referred to in 1992 MPLJ Pg. 79 is quoted as under : “Adverse possession that would extinguish a cosharer’s title must be adverse to the proved knowledge of the' cosharer ousted, however, notorious such possession may be. Exclusion or ouster involves not merely the actipf the person ousting but the state of the mind of the person ousted. Knowledge on the, part of the latter, therefore, is essential. Such knowledge may be proved directly or inferentially. On the principle of constructive notice, it may also be proved that the cosharer against whom possession was exercised had suhicient notice of facts or sufficient information which would put a reasonable person on enquiry and on receipt of which a reasonably attentive person could not but realize that he was ousted. It is not the law that a non-diligent cosharer is bound to sun'er. It is essential to nnd knowledge of ouster on his part.” In the present case, no such plea has been taken by the plaintih‘s nor the factum of adverse possession has been proved in accordance with the principles, referred to above. (12) The question in relation to surrender of property by Anju is also not established as the two Courts below have conduct. .n\ J .7; concurrently found that the plaintiffs have failed to prove the same in accordance with law. Besides the above, this Court is of the opinion that all the questions raised by the appellant at this stage are the, questions of facts and the same have been dealt with by the two coults below and concurrent findings have been recorded about them. This dourt has also gone through the evidence adduced by the parties and in the opinion of this Court no perversity arises on which an interference may be required in the second appellate stage, therefore, the concurrent nndings of the facts in relation to the above issues are upheld. (13) At last, learned counsel for the appellant also argued that since The Hindu‘Succession Act 1956 is not applicable in this case, the defendants being the daughteisiyill not inherit the properu‘es of their father,‘theref01e, these properties would devolve on, the male members alone being the only successors in the family. In fact, the argument is based upon the principle that the daughters will only have a life interest in the property and they cannot be said to be absolute owners of it. In light of this argument, the plaint is to be seen hrstly. The plaintiffs have not taken such a plea in their plaint, neither they have raised any such ground on the basis of daughters’ right in Adivasis nor any law or custom has been pleaded to show as to how the devolutiori of property will take place 1n their caste. The pleadings of the plaint as well as the reliefs claimed r \ .xgmx. .MWx. if» there§, do not permit this court to examine the matter in this line. The main relief of the plaint is quoted as under: ‘ f‘ (1) wwwrggéxm§rgrg§r mgzir I'D“§P&W qgfitg-{a‘xwmy W'mrrg7ga§iwz%dr%vr£grm me‘@«m¥~§mgwmm m4'w@'£%‘$£%‘mvrwm aggn ,, e Even on the‘ basis of pleas raised by the p1aintins, the above relief cannot be granted in the life time of the defendants as the plaintin's cannot be declared to be the absolute owners of the properties excluding the rights or interests (which according the plaintih's are the life interests) vested in it. Hence, this ground taken by the appellant in this appeal alsokfails. (14) After commencement of the amendment in the Code of Civil Procedure in the year 1976, this Court is having limited jurisdiction to entertain the second appeal, which can only be entertained if any substantial question of law is involved in the matter, Please refer to the decision of Supleme Court reported in (2000) 3 SCC 708 (Roan Singh (Dead) through LRsr‘Vs- Ram Singh (Dead) through LRs) in which it has been laid down that under Section 100 of the Code of Civil Procedure, the jurisdiction of’the Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the § l l { High Court to inisrfm‘e with the pure. questions of fact While exercising its jurisdiction u/s 100 C.P.C. It has been‘ said by the Apex Court that the existence of substantial question of law is the sine qua non for the exercise of jurisdiction under the amended provisions of Section 100 of the Code of Civil Procedure and unless such questions are involved, the appeals are not to be entertained (Please see Thiagaraian and others q . Vs. Sri Venugopalaswwnu B. Koil and others reported in (2904) 5 sec 762). - (15) In the opinion of this Court, no substantial questions of law are involved for consideration. Hence the appeal fails and is dismissed at the admission stage itself Without any orders as to the costs. Sd/- j Sunil Kumar Sinha ‘ ‘ ‘ Judge, //‘“ a; .o1.2oo5 i» v Rao ’