Daldali, Thana Borla v. Dharam

APPELLANT: -PLAINTIFF ;^^yS^ ^ .Dhansingh S/o Choudhary Panika aged about 70 Years, R/o Village Daldali, Thana Borla Tahsil and District Kawardha (CG). a^( :tl VERSUS RESPONDENTS

1. Dharam S/o Maru Gaur / DEFENDANTS aged about 50 years.

2. Kabara @ Moti S/o Dhara Gaur, aged about 30 years. Both are resident of Village Bamhantara, P.S. Borla, Tahsil ^cuj<^rd^lC(. Kawardha District R^tan(^^Mi,(CG).

3. State of Chhattisgarh, Through Collector Rajnai^dgaott ]/(ac^g>yd^ (CL^^f. District RajncLndgaon^(< MEMORANDUM OF SECOND APP^L UNDER SECTION OF THE CODE OF CIVIL PROCEDURE 1908 HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0. 448 of 2005 Appellant/ Plaintiff Respondents/ Defendants Dhansingh VERSUS

1. 2. 3. Dharam Kabara @ Moti State of Chhattisgarh Smt. Renu Kochar, learned counsel for the appellant. JUDGIVIENT (Passedon ^1.12.2005) DHIRNDRA MISHRA. J This is the plaintiffs second civil appeal as the suit for perpetual injunction was dismissed by the trial Court and the appeal preferred by the plaintiff was also dismissed bythe learned lower appeliate Court bythe impugned judgment and decree. description before the trial Court.) (Parties hereinafter shall be described as per their / 2» The case of the plaintiff before the trial Court was that the piaintiff is the owner of the suit land and he was in possession of the same, however, the defendants 1 and 2 forcibly entered into the suit land on 23rd November 1997 and hai"vested the crops grown by him and therefore, the above suit was filed.

3. Defendant No. 3 did not file written statement whereas defendants No. 1 and 2 in their written statement denied the ownership of the plaintiff over the suit land and submitted that in fact the defendants have been in possession ofthe suit property for the last 60-70 yearssince the lifetime of their father. They denied the ailegation that they forcibly har/ested the crops of the plaintiff and further pteaded that in fact the piaintiff had done mar-peet on 23.11.1997 and the defendants reported the matter to the police and-a case was registered against submitted that the plaintiff is trying to dispossess the defendants on the plaintiff. It is aiso the strength of forged and fabricated documents which he has obtained ciandestinely in a revenue case. The defendants also preferred a counter- ciaim and prayed for dectaration that they are the owners of the suit property. On the basis ofthe pleadings ofthe respective parties, learned trial Court framed several issues and dismissed the suit ofthe plaintiffas well as the counter-claim ofthe defendants by recording a finding that the plaintiffhas failed to prove that the defendants resorted to illegal interference over the suit property and that the plaintiff was also not entitled for perpetual injunction against the defendants. The counter-claim preferred by the defendants was also rejected on the ground that the defendants have failed to establish that any patta was issued to them or that they were in possession ofthe suit propertyforthe last 60-70 years sincethe lifetime of their father orthat the defendants were the owners ofthe suit property. The appeal preferred by the plaintiff has also been dismissed by the impugned judgment and decree and the findings of the trial Court were affirmed. Learned counsel for the appellant submits that that both the Courts have is recorded that jgnored the documentary evidence of Ex.P/1 and P/2 filed by the plaintiff wherein it the plaintiff was in possession of the suit property in the year 1996-97 and therefore, the Courts below ought to have drawn a presumption in favour ofthe piaintiffthat he is the owner of the suit property and was in possession ofthe same frorn the year1952. However, the above documents have been brushed aside by the iearned trial Court on the ground that the above documents are not certified and the same have not been proved by the author of the documents i.e. Patwari who had given that documents for producing it before the poiice. She further submits that since the patwan has not been examined, should be presumed that the plaintiff was in possession of the suit property since long. This evidence has also been disregarded only on the ground that the plaintiff has not pleaded that he was in possession ofthe suit property since 1952.

7. Learned counsel for the appetlant further argues that the lower appellate Court without dealing with the evidence availabie on record has mechanically affirmed the findings of the trial Court and therefore, substantial question of law involved for adjudication of this appeat is that "vrfiether the Courts below were justifiied in not drawing presumption on the basis of documents of Ex.P/1 and P/2 which shows that the plaintiff had acquired title on the ground of long and continuous possession?"

9. I have heard learned counsel forthe appellant. Both the Courts below have arrived at the conctusion that the plaintiff has failed to prove that he is th©owner of the land in question or he was in possession of the same on the basis of some valid title as no document was filed by the plaintiff in this regard. Since the plaintiff has failed to prove the possession over the suit property, therefore he is not entitled for injunction as claimed. The above findings are based on oral perpetual and documentary evidence available on record. The trial Court has minutely dealt with the orai and documentary evidence on record and the above finding ofthe tria! Court swhich has been subsequently affirmed by the learned lower appellate Court, is based on proper and detailed appreciation ofthe evidence available on record.

10. Thus in view of the aforesaid discussion, the impugned judgment and decree does not suffer from any infirmity or iliegality and no substantial question of law as proposed by learned counsel for the appetlant is made out for adjudication of this appeal. The appeal is devoid of substance and the same deserves to be dismissed at the motion stage itself and is accordlngly, dismissed. g^ Dhirendra Mishra Judge