The main legal point established in the judgment is the interpretation of the applicability of Section 33 of the Indian Evidence Act and Section 165(7)(b) of the Chhattisgarh Land Revenue Code, 1959, and their retrospective effects.

1. This Second appeal under Section 100 of C.P.C. has been preferred by the defendant against whom both the Courts below have passed a decree of declaration and possession to the effect that plaintiff Surat @ Guddu is the adopted son of late Smt. Chhaya widow of Chhote Samaru and the said Surat is the title holder of suit land admeasuring 8.28 acres mentioned in Schedule 'A' with the plaint and the sale-deed in favour of defendants No.2 to 5 executed on 10/05/2001 is not binding on the plaintiff and the defendants are . liable to deliver possession of the suit land to the plaintiff.

2. Plaintiffs case, in short, was that late Chhote Samaru was. serving as Jhankar (village servant) of village Jhinkipali and in lieu thereof he was granted Patta of 10.84 acres of land. In an earlier suit bearing Civil Suit No. 19-A/ 91 a decree was passed in favour of Chhaya widow of Samaru. The said Samaru and Chhaya were issueless and had adopted plaintiff from his childhood, however a deed of adoption was executed and registered on 22/04/1991. After death of Samaru defendant Tarasingh• got recorded his name on the strength of a forged WILL and has sold 20 decimal of land in favour of one Daulat. In Civil Suit No. 19-A/91 Chhaya was declared owner of the suit land and the WILL deed dated 30/05/1969 in favour of Tarasingh as well as sale-deed in favour of Daulat were declared void.

3. It was further pleaded that the defendant No.1 Tarasingh again made a proposal with ill intention that he may be allowed to cultivate the land on some terms and at the end of the lease period the land would revert to Chhaya. When Chhaya agreed to this proposal she was taken to Sarangarh and instead of executing a lease deed the said Tarasingh got executed four separate sale deeds in favour of his four sons, the defendants No.2 to 5. The sale-deeds were without any consideration and have been fraudulently executed. When Tarasingh got mutated his name Chhaya objected and the local Panchayat cancelled the mutation. The lands could not have been sold without permission of Collector as the lands were granted to Samaru as service land. Plaintiff claimed mesne profit of Rs.50,000/- for the period during which defendant No.1 was in possession.

4. According to the defendants Tarasingh is the son of real brother of Chhaya and he was treated like son by Samaru and Chhaya and he was thus adopted by them, he was thus cultivating the land with the consent of Samaru.

It was stated by the defendants that the judgment of Civil Suit No. 19-A/91 was in favour of Chhaya and not in favour of present plaintiff.

5. Both the Courts below have found that plaintiff is the adopted son of Chhote Samaru and Chhaya and the sale-deeds were got executed in favour of defendants No. 2 to 5 by committing fraud and without giving any consideration. It was also found that Chhaya, Samaru and the plaintiff were in possession of the suit land at the time of delivery of judgment in the earlier suit and further that the suit land could not have been sold without permission of the Collector as the same is service land granted to Samaru as a village servant. It was also found that the suit is within limitation and is properly valued.

6. Learned counsel for the appellant has argued that both the Courts below have committed an illegality by placing reliance on statement of Chhaya (Ex P/4) in Civil Suit No. 19-A/91 by taking recourse to Section 33 of the Evidence Act whereas the said provision is attracted when parties to the earlier suit and the present suit are same, which is not the position in the present matter. He would also submit that Section 165 (7)(b) of Chhattisgarh Land Revenue Code, 1959 (henceforth 'the Code') would not be attracted in the present case for declaring the sale-deed illegal because the said Section does not have a retrospective effect and the provision having been inserted with effect from 1992 would not apply to a land which was granted by the State to a village servant in the year 1