Raghvendra Kumar Sahu v. State of Chhattisgarh

(Sinale Bench: Hon'ble Mr. N.K. Aaarwai. J.) Present : Shri Ashok Shukla, Advocate for the appellant. Shri Sunii Tripathi, Advocate for respondent No. 3 & 4. Shri DN Prajapsti, Advocate.for respondent No. 7. Shri GD Waswani, Govt. Advocate for the State. ORALORDER

2. Heard on admission. This Is ptaintiff's Second Appeal under Section 100 of CPC against the judgment and decree dated 13.08.2007, passed by .l»',/—!«1, "^,^ "^: ''-%g< ^ ^ the District Judge, Koriya (Baikunthpur), in Civil Appeal No. 47-A/06 affirming the judgment and decree dated 26.08.2006 passed by Civii Judge, Class-1, Baikunthpur, in Civii Suit No. 18-A/88. Brief facts of the case are ihat: plaintiff fited a suit for declaration of his title over the suit iand bearing Khasra No. 291/2 area 1.40 Acre and CTiasra No. 291/3 area 0.50 Acre, tota! area 1.90 Acres, situated at Viilage Ranayee; for declaring the mutation ordsr dated

02.01.1985 passed by the Revenue Inspector/defendant No. 4 as illegal and vold and ateo for damages inter-alia on the ground : he purchased the suit !and from his grandfather Sandehi and step- grand-mother Smt. Sukwariya vide sale deed dated 13.09.1569 for a sale consideration of Rs. 3000/-. The suit land was iliegally sold to respondent No. 7 by the Koriya District Sahkari Bhoomi Vikas Bank in recovery of loan. The ciaim was denied by the defendants. Defendants also denied the execution of sale deed by Sandehi in favour of plalntiff. s>. Sased cn the pleadings ofthe parties, the trial court framed issues, parties !ed evidence.

6. The triai court, on appreciation of the evidence led in the case, dismissed the suit finding inter aiia : suit property was joint family property of Sandehi and Kashi Prasad; Sandehi tooK loan from the respondent/Bank to cater the need of his joint family and a!so mortgagea' their joint famity property; Sandehi and Kashi Prasad both put their signatures on the mortgage-deed; pialntiff neither purchased the suit land nor obtained its possession and alleged sale deed was nominal one. •••".ffy, '^ ,,, -^ ,,?''..»isS, ''f'l-.-a'W^ 'l '•^"yy ; t .? ^ c

7. Plaintiff preferred first appeal there-against. The first appeliate court, re-appreciating the entire evidence and material placed on record, whiie dismissing the appeai and affirming the judgment and decree passed by the trial court, also held : suit was barred under the provisions of Section 34 of the Specific Relief Act. Hence this Second Appeal.

8. Learned counsel for the appeilant would submit : the findings recorded by both the courts below is preserve and is contrary to the evidence adduced in the case. He further submits that the piaintiff after purchasing the sult !and also obtained its possession and is in its possession.

9. I have heard the counsel appearing for the appellant and perused the judgment and decree impugned including records of both the courts below.

10. A careful reading of records of both the courts below wou!d reveal Sandehi took toan from the respondent/Bank to cater the need of his joint famiiy therefore he along with Kashi Prasad have executed the mortgage-deed in Bank's favour. Indisputably, loan was not repaid and in execution of a decree/award, the suit land was auctioned and the same was purchased by respondent No. 7 in auction and is in possession of the suit property,

11. Plaintiff was four years old at the time of alleged execution of sa!e deed dated 13.02.1969 in his favour. The same was not mutated in his name for a long period; his father Kashi Prasad was the on!y heir of Sandehi and was also joint owner of the suit property, therefore, the trial court'sfinding that the sale deed was nominai, cannot be •^!£3SKaS- t) ^ •*^^ G found fault vi/ith. Further, ptaintiff is not in possession of the suit property and the first appellate court has not committed any error in holding the suit barred under the provisions of Section 34 of the Speciflc Relief Act. 1 also do not find any illegality, perverslty or absurdity In the above concurrent findings recorded by both the courts beiow.

12. While dealing with the scope of Section 100 of C.P.C., the Supreme Court in the case of Santosh Hazari v. Purushottam Twari, has heid "substantial in para 12 ss under: "12. The phrase question of law", as occurring in the amended Section 100 is not defined in the Code. The "question of law", means - of word substantial, as quatifying having substance, essential, real, of sound worth, important or considerable. !t is to be understood as something in contradistinction with- technlcal, substance consequence, or academic merely. However, it is clear that to qualify the scope of the legisiature has chosen not "substantlai question of law" by suffixing the words "of generai importance" as has been done in many other provisions such as Section 109 of the Code or Artlcle 133(1)(a) of Constitution. The substantial question of law on which a In Guran importance. second appeal sha!l be heard need not necessarily be a substantial question of law of general Ditta v. T. Ram Ditta (AIR 1928 PC 172), "substantla! the phrase question of !aw" as it was empioyed in the last clause ofthe then existing Section 110 CPC (since oroitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial questlon of general importance but a substantial question of law which was involved in the case as between the parties..........." \SCC179 r' E.J .••!^ .^- v

13. This court cannot proceed to hear a second appeal without there being any substantial question of law invoived in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction underthe amended Section 100 of SIIT the Code. Learned counsei appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case. In the absence whereof, this Court has no option but to dismiss the appeai.

14. In view of above the appeal fails and is accordingly dismissed. No order as to costs. ; ~ ^T.7 N.K. Agrawal Judge Sahu S<L:1:K^