Goverdhan vs Jagannath

Narendra Kumar Vyas, J

Heard on admission.

This second appeal has been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 07.01.2016 passed by First Additional District Judge, Raigarh, District- Raigarh (C.G.) in Civil Appeal No. 202800000342015 [Jagannath Vs. Samari & others], allowing the appeal filed by the plaintiff against the judgment and decree dated 05.02.2015 passed by Civil Judge Class-I, Gharghoda, District- Raigarh (C.G.) in Civil Suit No. 12A/2007 by which the learned trial Court has dismissed the suit filed by the plaintiff.

For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 12A/2007 which was filed before the trial Court for declaration of title, possession and for grant of permanent injunction.

The brief facts, as reflected from the plaint averments are that the plaintiff has filed a civil suit for declaration of title, possession and for grant of permanent injunction mainly contending that the land bearing Khasra No. 455/06 area admeasuring 0.032 Hectare situated at Village- Gharghoda jointly belongs to the plaintiff and defendants No. 3 to 12 and the defendants No. 1 & 2 without rhyme and reason have started interfering in the possession of the suit property. When the plaintiff and other defendants No. 3 to 12 have objected interference in the possession of the suit property by defendants No. 1 & 2, then they started digging plinth for construction of house on 25.05.2004 and also stored bricks for construction, therefore, the plaintiff has filed an application before Tahsildar, Gharghoda under Land Revenue Code on 28.05.2004, wherein, he has prayed for restraining defendants No. 1 & 2 from constructing house in the suit property. The Tahsildar, Gharghoda vide order dated 29.05.2004 has granted stay in favour of the plaintiff thereafter, the plaintiff has done demarcation in Revenue Case No. 3/A-12/2004-2005, according to which, the land measuring 58 x 28 sq.ft. i.e. 145 x 47 sq. ft. defendants No. 1 & 2 are in illegal possession. It has been further contended that the application filed by the plaintiff under Section 250 of the Land Revenue Code has been rejected without examining the fact by the Tahsildar, Gharghoda, which has necessitated the plaintiff to file present civil suit for declaration of title and possession.

Defendants No. 1 & 2 have filed their written statement denying the allegations made in the plaint contending that the defendants No. 3 to 12 have not been arrayed as plaintiffs in the suit, as such, the suit deserved to be rejected for non-joinder of necessary party. It has been further contended that it is a Government land and is not ancestral property of the plaintiff and defendants No. 3 to 12. It has been further contended that no document has been produced with regard to the title of the suit property and it is a Government land wherein son of defendant No. 1 namely Prahlad has constructed Kachcha Makan and kitchen garden and he is in possession of the suit property. After his death, defendant No. 1 is in actual possession of the suit property. It has been further contended that defendants No. 1 & 2 have never interfered in the suit property. When they have constructed house, the plaintiff has raised objection. It has been further contended that land bearing Khsra No. 455/01 original Khasra No. 455/02 area admeasuring 2.82 acres is recorded in the revenue record, therefore, the neither plaintiff nor defendants No. 3 to 12 have acquired the same without declaration of title, the suit is not maintainable. It has been further contended that it is a Government land, therefore, without impleading Government as party to the suit, the present suit is not maintainable and would pray for dismissal of the suit.

On pleadings of the parties, the learned trial Court has framed as many as eight issues-

(1) Whether plaintiff and defendants No. 3 to 12 are title holder of the suit property bearing Khasra No. 455/06 area 0.032 Hectare situated at Village & Tahsil- Gharghoda, District- Raigarh?

(2) Whether on 25.05.2004, defendants No. 1 & 2 have dispossessed plaintiff from the land mentioned in Schedule- A, B, C & D of the plaint?

(3) Whether the suit is not maintainable on the count that the State is not necessary party and notice under Section 80 (2) of the C.P.C. has not been given?

(4) Whether any cause of action has not been arisen?

(5) Whether the suit has been properly valued?

(6) Whether the suit is barred by limitation?

(7) Whether the plaintiff is entitled to get vacant possession of the suit property mentioned in part A, B, C & D of Schedule?

The plaintiff to substantiate his case examined Jagannath Singh (PW-1), Shashinath Negi (PW-2) and exhibited documents namely Khasra Panchshala (Ex.P/1), Map (Ex. P/2), Kishtabandi Khatouni (Ex.P/3), record of rights (Ex. P/4), amendment register (Ex.P/5), Kishtabandi Khatouni (Ex.P/6), receipt (Ex.P/7), Kishtabandi Khatouni (Ex. P/8), Khasra (Ex. P/9), B-1 (Ex. P/10), Khasra Panchshala (Ex. P/11), demarcation report (Ex. P/12), Panchnama (Ex. P/13), Map (Ex. P/14), filled book (Ex. P/15), Khasra (Ex. P/16), Patwari report (Ex. P/17) & stay order (Ex. P/18). The defendants to substantiate their case have examined Goverdhan Satnami (DW-1), Kamta Prasad (DW-2) & Toshram (DW-3).

Learned trial Court after appreciating the evidence and material on record has dismissed the suit vide order dated 05.02.2015 by recording its finding that defendants No. 1 & 2 have constructed the house and plaintiff and defendants No. 3 to 12 were not in possession of the suit property on 25.05.2004, therefore, the question with regard to the dispossession by defendants No. 1 & 2 does not arise and dismissed the suit. It has also been recorded a finding that plaintiff has not filed the suit within 12 years from the date of possession by defendants No. 1 to 2, therefore, the suit is barred by limitation.

Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiff has preferred first appeal before the learned First Appellate Court, Raigarh mainly contending that the finding recorded by the learned trial Court is perverse and contrary to the evidence on record, as such, the same deserves to be set aside by the First Appellate Court. It has been further contended that learned trial Court should have seen from bare perusal of Annexure D/7, it is quite vivid that defendant's No. 1 son and brother of defendant No. 2- Prahlad’s land is bearing Khasra No. 455/07 area 0.162 Hectare, which is not the suit property.

Learned First Appellate Court while appreciating the evidence and material on record has allowed the appeal by recording its finding that the defendants have not produced any document to demonstrate that they are in possession of the suit property prior to 28 years and the document which has been produced by the defendants i.e. Ex. D/6 the same is of the year 1988-89 and 2001-02 in which also there is no entry with regard to possession of defendants No. 1 & 2. It has been further recorded that there is no entry with regard to the possession of defendants No. 1 & 2 in Panchshala Khasra and defendants No. 1 & 2 are in possession of the suit property in the year 1998 and it has been further recorded in the revenue record.

Learned First Appellate Court has also recorded finding that the defendants have adduced evidence that they are in possession over the suit property and after their death, the defendants No. 3 to 12 were in possession of the suit property whereas in the documents produced by the defendants, it is clear that they are in possession of Khasra No. 455/07 and the defendant has himself admitted that his father has constructed house in Ward No. 4 and also residing at Ward No. 4, therefore, after appreciating the evidence and material on record, has allowed the appeal filed by the plaintiff by holding that the plaintiff and defendants No. 3 to 12 are in joint possession of the suit property. Being aggrieved with the judgment and decree passed by the learned First Appellate Court, the defendants No. 1 & 2 have filed second appeal before this Court.

Learned counsel for the appellants/defendants would submit that the finding recorded by learned First Appellate Court is against the material evidence available on record as respondent No. 1 plaintiff has failed to produce the evidence showing that the land in question was ancestral property or he was in possession over the said property at any point of time. He would further submit that the learned First Appellate Court has failed to see that one side the plaintiff stated that he was dispossessed in the year 2004 and on the other side the revenue courts as well as trial court find the possession of the appellants since the death of Pramod Kumar and during life time of Pramod Kumar, he was in in possession over the land and house which is constructed in the said land. He would further submit that the learned First Appellate Court has erred in reversing the well-reasoned finding of the trial Court in allowing the suit of the respondent/ plaintiff without assigning any reason. He would further submit that the finding recorded by learned First Appellate Court is based on surmises and conjectures and same cannot be legally admissible under the eyes of law. He would further submit the finding recorded by the learned First Appellate Court suffers from perversity, therefore, the substantial question of law is required to be adjudicated in the appeal and the appeal may kindly be admitted.

I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

From the evidence adduced by the plaintiff before the trial Court and exhibited Kishtabandi Khatouni of the suit property for the year 2003-04, record of rights for the year 1954-55 (Ex. P/4), amended registration of Village- Gharghoda, B-1 for the year 1981 of Village- Gharghoda, wherein name of the plaintiff's father Chatursingh has been recorded in the revenue record of Khasra No. 455/06. The plaintiff has also exhibited revenue records i.e. demarcation report and copy of khasra, report of Patwari and other revenue record to demonstrate that the plaintiff and defendants No. 3 to 12 are joint owners of the suit property.

The witness namely Jagannath Singh (PW-1) was extensively cross-examined and in the cross-examined, it is specifically denied that in the revenue record, the suit property has been recorded as government land, this property is ancestral property and he has also denied that the suit property is recorded in the name of son of defendant- Samari namely Prahlad who has taken possession of the suit property. He has denied that after death of Prahlad, his mother namely Jhumka and his younger brother were in possession of the suit property. He has specifically stated that Goverdhan is in possession of the suit property from 2004 and he has reiterated that Prahlad was never in possession of the suit property. He has admitted that in the rights of record it has been mentioned that the suit property has been received by his ancestors on the lease.

Shashinath Negi (PW-2) who has supported case of the plaintiff was extensively cross-examined by the defendants and he has admitted that the suit property was lying vacant 30 years ago in which no construction was carried out.

Goverdhan Satnami (DW-1) has admitted in the cross-examination that the suit property is having Khasra No. 455/06. He has also admitted that in the plaint it has been mentioned that land bearing Khasra No. 455/06 has been received by plaintiff’s father-Chatur Singh in the lease. He has also admitted that in the revenue record for the year 1993-94 to 1997-98, 1998-99, 2001-02, there is no entry about possession of the defendants No. 1 & 2. He has admitted that he has produced the revenue record wherein Khasra No. 455/07 has been mentioned and it has been mentioned in that record that the land is in possession of Prahlad and Ramsingh. He has admitted that the demarcation for Khasra No. 455/06 was done on 28.03.2005 by the Patwari and he has stated that he was not present at the time of demarcation. He has denied that at the time of demarcation plaintiff and defendants were present. He has also admitted that he has never challenged demarcation done by the Patwari before any of the court of law.

Kamta Prasad (DW-2) who was examined before the trial Court has supported case of the defendant and was extensively cross-examined by the plaintiff wherein he has admitted that Prahlad has constructed house in which Khasra number is not known to him. He has also stated that at the time of damages of house due to flood, the government used to pay compensation to the house owner, but he has stated that no compensation has been given to Goverdhan by the government.

From evidence adduced by the parties, it is quite vivid that the plaintiff was able to establish that the suit property belongs to him and name of Chatur Singh was recorded in the revenue record particularly in Ex. D/10.

From bare perusal of the documents filed by the defendants No. 1 & 2 i.e. Ex D/6 which is revenue record for the year 1992-93 pertains to Khasra No. 455/01, 455/02 & 455/03, which does not relate to Khasra No. 455/06. Similarly Ex. D/7 Panchshala Khasra is also not related to Khasra No. 455/06. The defendants have filed Panchshala Khasra for the year 1988-89 wherein neither names of the defendants No. 1 & 2 nor name of the plaintiff have not been mentioned.

It is further reflected from the revenue records for the year 1955-56, which was produced by the plaintiff, it is crystal clear that name of Chatur Singh was mentioned in the record. The defendants No. 1 & 2 have alleged that the document adduced by the plaintiff in the evidence is forged, but there is no cross-examination about correctness of the documents, therefore, the learned First Appellate Court has rightly recorded its finding at paragraph 16 of the judgment that the documents which have been produced for the year 1999-2000, there is no entry with regard to the possession of the defendants No. 1 & 2 and from record of 1998, it does not indicate that defendants No. 1 & 2 are in possession of the suit property. It has also been recorded by the learned First Appellate Court that the entry mentioned in the revenue record is presumed to be correct unless rebutted by cogent evidence. The First Appellate Court has passed the judgment and decree after appreciating the evidence, material on record, which does not suffer from perversity or illegality which warrants interference by this Court.

Upon perusal of entire evidence, there is no substantial question of law requires to be formulated for hearing of this second appeal. There is concurrent finding of fact with regard to finding recorded by the First Appellate Court that the suit property belongs to the plaintiff and defendants No. 3 to 12. Hon’ble the Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others (2020) 4 SCC 659, has held at paragraph 28 as under:-

“28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

“When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).”

This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.

In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.

A decree be drawn up accordingly.