JUDGMENT:

1. The present second appeal is preferred by the plaintiffs/appellants under Section 100 of the C.P.C. against judgment and decree dated 08.08.2011 passed by Additional District Judge, Janjgir, District-Janjgir-Champa (C.G.) in Civil Appeal No. 04-A/08 (Jai Prakash & others v. Onkar & others) affiring the judgment and decree passed by Civil Judge, Janjgir in Civil Suit No. 106A/2003 on 11.03.2008.

2. The instant Second Appeal is admitted for hearing by this Court on 26.04.2017 on following substantial question of law:-

Whether the learned First Appellate Court has erred in deciding the appeal without considering the application filed on 20.04.2009 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 ?”

3. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed Civil Suit No. 63A/98 wherein the plaintiff has claimed for declaring the order dated 14.10.1991 passed by the revenue court in case of Arra Bai v. Vishnu Prasad & others. Alternatively, it was also prayed that the plaintiff be declared half share of suit land measuring 11.20 acres. It has also been prayed that the plaintiff be also granted joint possession along with defendant No. 1 in suit land.

4. For better understanding of the relationship between the plaintiff and respondents, it is expedient to quote genealogy of the parties as mentioned in the plaint, which is extracted below:-

5. From perusal of the plaint averments, it is reflected that as per record of right for the year 1954-55, there was joint account of land total Khasra No. 37 area admeasuring 30.73 acres between mother of defendant No. 1-Jamuna Bai, Tripatinath & Bisesarnath, but Bisesarnath was separated from joint account and after separation total 19.81 acres land were recorded and there was no partition between Tripatinath & Jamuna Bai. Husband of Jamuna Bai expired in the year 1941, therefore, as per principle of survival, the whole land was merged in the name of Tripatinath, but inadvertently, name of Jamuna Bai was recorded. It has also been stated in the plaint that father of plaintiff expired in the year 1974, therefore, the plaintiff, defendant No. 2 Amritlal alienated the property by succession and in the revenue record, name of Jamuna Bai, defendant No.2- Amritlal, plaintiff’s mother-Sukhinbai was recorded. Defendant’s No. 1 mother- Jamuna Bai who was residing with her brother expired in the year 1983 thereafter defendant No. 1 has also recorded her name after mutation.

6. It has been further pleaded that in the plaint that mother of defendant No.1 before her death, had sold her land and only 11.20 acres land was left, which was recorded in the joint name of defendant No.1, defendant No.2-Amritlal and plaintiff. In the meantime, defendant No.2 & Amritlal was separated and left to Korba & Bilaspur respectively. They have handed over the land to the plaintiff. It has also been pleaded in the plaint that the plaintiff is in possession of the land prior to death of Jamuna Bai and even after her death. The plaintiff was looking after the suit land and defendant No. 1 was visiting to plaintiff occasionally as guest.

7. It has been further pleaded in the plaint that in the year 1983-84, defendant No. 1 filed complaint bearing Revenue Case No. 1A/6 Year 1984-85 before Tahsildar, Janjgir against defendant No. 2- Amritlal and the plaintiff for recording her name, wherein defendant No. 1 has shown her name as successor of Jamuna Bai and since defendant No. 2 Amritlal has already sold his land, as such, she filed an application for recording her name only in the revenue record. The defendant