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2015 Supreme(Chh) 201
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Manohar Shesh and Ors. - Appellants
Vs.
Shakuntala Devi and Ors. - Respondent
Appeal No. 19 of 2008
Decided On : 15-06-2015
For the Appellant :B.P. Sharma and Hari Agrawal, Advocate
For the Respondents:H.B. Agrawal, Sr. Advocate and Preeti Yadav, Advocate
Headnote:
Code of Civil Procedure, 1908 - Section 100- Challenged the legality – Claim of compensation - Whether the suit preferred by the plaintiffs was maintainable in its present form - Whether the First Appellate Court has properly considered the applicable legal principles while setting aside the judgment and decree passed by the trial Court became title holder. It was further pleaded that on strength of will, they claimed for mutation which was denied by concerned which has given them cause of action in their to seek declaration to this effect that they are title holders of the suit land and they also sought relief of permanent injunction. The suit was filed by the plaintiffs/respondents public at large and State of Chhattisgarh through Collector, Raipur as party defendants. The defendants No. 1 and 2/respondents No. 3 and 4 proceeded ex parte as they did not appear before the trial court despite service of summons by trial court – Held, Reverting back to the facts of the present case it would appear that trial court after appreciating and considering the material brought on record by the plaintiffs, reached to the categorical conclusion that defendants have not denied plaintiffs title and even not interested to deny their title and as such the one of the essential requisite for granting the decree for declaration under Section 34 of Act is not available, not only this, trial court further reached to the conclusion that the sons of the late present appellant 2 herein ought to have been is party defendants in the suit and as such the plaintiffs suit being not maintainable dismissed the same - In a appeal preferred by plaintiffs the first appellate court recorded a finding that the late Smt. has executed a will in of plaintiffs and on strength of said will plaintiffs have acquired their title over suit land and on which State of Chhattisgarh and public at large have not raised any objection and as such plaintiffs are entitled for decree for declaration of title in their - First appellate court neither considered it proper either to meet with the recorded by the trial court for dismissing the suit nor reversed the finding of the trial court after by giving valid and convincing reasons for -agreeing with the recorded by the trial court for dismissing the suit. The first appellate court being the final court of fact while reversing the decree was required to assign good reasons much less sufficient and valid reasons to reverse the decree of the trial court, as such the first appellate court failed to perform its duty in reversing the decree as mandated by their Lordships of the Supreme Court in case of and reversed the decree by recording – Appeal dismissed
Sanjay K. Agrawal, J.
1. By this second appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), the appellants herein have challenged the legality and propriety of the judgment & decree passed by District Judge, Raipur in Civil Appeal No. 2-A/2007, reversing the judgment and decree passed by 8th Additional Civil Judge, Class-2, Raipur in Civil Suit No. 193-A/97. The substantial questions of law involved, formulated and to be answered in the second appeal preferred by appellants herein are as under:-
"(1) Whether the suit preferred by the plaintiffs was maintainable in its present form?
(2) Whether the First Appellate Court has properly considered the applicable legal principles while setting aside the judgment and decree passed by the trial Court?"
2. In order to answer the aforesaid substantial questions of law, the imperative facts required to be noticed are as under:-
"(For the sake of convenience, parties will be hereinafter referred to as per their status shown in the plaint)"
2.1. The following genealogical tree would demonstrate the relationship among the parties:-
Gajanand Rao Shesh = Sushila Bai
( Wife) (Died on 19.11.2011)
Manohar Shesh
(Appellant No.1)
Vasant kumar Shesh (Appellant No.2)
Chandrasshekhar Shesh
Shakuntala Devi Shesh (Plaintiff No.1)
Shashikala Shesh (Plaintiff No.2)
Shrireesh Shesh
(Appellant no.3)
Ashish Shesh
(Appellant No.4)
Originally the suit property was held by late Gajanand. Rao Shesh and after his death, it was inherited by his widow late Smt. Sushila Bai. The plaintiffs/respondents No. 1 and 2 filed the civil suit seeking declaration of their title and permanent injunction stating inter alia that late Smt. Sushila Bai i.e., their mother had executed a will in their favour on 07.02.2001 bequeathing the entire suit property in their favour and it was further pleaded that there was previous partition on 09.07.1980 in the life time of their father and as such the subject suit property fell in share of late Gajanand Rao Shesh and after death of Gajanand Rao Shesh, plaintiffs' mother Smt. Sushila Bai became title holder. It was further pleaded that on strength of will, they claimed for mutation which was denied by concerned Patwari which has given them cause of action in their favour to seek declaration to this effect that they are title holders of the suit land and they also sought relief of permanent injunction. The suit was filed by the plaintiffs/respondents No. 1 and 2 impleading public at large and State of Chhattisgarh through Collector, Raipur as party defendants. The defendants No. 1 and 2/respondents No. 3 and 4 proceeded ex parte as they did not appear before the trial court despite service of summons by trial court.
2.2. The suit filed by the plaintiffs before the trial Court was dismissed by judgment and decree dated 18.07.2007 finding inter alia that the plaintiffs have not impleaded the person denying their title and person interested to deny their title, and as such the suit was not maintainable and it is further held that the plaintiffs ought to have filed the suit under the provisions of the Indian Succession Act, 1925 for obtaining succession certificate based on Section 30 of the that Act.
2.3. Questioning the judgment and decree passed by the trial Court dismissing the suit, the respondents No. 1 and 2/plaintiffs preferred the First Appeal before the First Appellate Court. The First Appellate Court by its judgment dated 13.09.2007 allowed the appeal partly holding that the respondents No. 1 and 2/plaintiffs are entitled only for declaration of decree as claimed in the suit as party defendants namely public at large and State of Chhattisgarh have no objection in granting relief, but declined to grant decree for permanent injunction in favour of respondent No. 1 and 2/plaintiffs.
2.4. The present appellants No.
