NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Civil Revision No. 04 of 2022 Order Reserved On : 07.12.2023 Order Delivered On : 01.03.2024

1. Santosh Soni, aged about 45 years,S/o Late Ganga Ram Soni, 2. Smt. Seeta Devi, aged about 70 years, W/o Late Gangaram Soni, Both are R/o village Baloda, Tahsil – Baloda, District –

Janjgir-Champa (C.G.)

---- Petitioners/

Plaintiffs Versus

1. Santosh Thawait, aged about 44 years, S/o Kheduram, 2. Pawan Thawait, aged about 40 years, S/o Kheduram, 3. Mangli Bai, aged about 70 years, W/o Late Kheduram, 4. Santosh Thawait, aged about 50 years, D/o Kheduram, No.1 to 4 are Caste – Barai, R/o Baraipara Baloda, Police Station & Tahsil – Baloda, District Janjgir-Champa (C.G.)

5. Ahilya Thawait, aged about 38 years, W/o Sanjay Thawait, D/o Late Kheduram Thawait, R/o C-Block 29 Imlibhatha Bilaspur, Tahsil and District Bilaspur (C.G.)

6. State of Chhattisgarh, Through : Collector, Tahsil & District – Bilaspur (C.G.)

---- Respondents/

Defendants For Petitioners : Mr. Ratnesh Kumar Agrawal, Advocate.

For Res. Nos. 1 to 5 : Mr. P.M. Shrivas, Advocate.

For Res. No.6/State : Ms. Binu Sharma, P.L.

Hon'ble Smt. Justice Rajani Dubey

C A V Order

1. The petitioners have filed this revision being aggrieved by the order dated 17.12.2021 (Annexure A/1) passed in Civil Suit No.34-A/2015 by the learned Civil Judge Class-I, Akaltara, District Janjgir-Champa (C.G.), whereby the learned trial Court has rejected the application of the petitioners/plaintiffs filed under Order 23 Rule 3 of the C.P.C for withdrawal of suit with liberty to file a fresh suit.

2. Brief facts of the case, as projected by the petitioners, are that the sole plaintiff Late Ganga Ram Soni had purchased the suit property from the predecessor of the respondents/defendants prior to 50 years and got the possession of the same, but the name of the sole plaintiff has not been recorded in the revenue record, therefore, on the principle of the adverse possession sole plaintiff is entitled to declare owner of the suit land. Further, the respondent/defendant No.1 – Kheduram tried to alienate the suit property and dispossess the sole plaintiff from the suit land for which he had published the public notice in daily newspaper that he is in possession of the suit property, therefore, the sole plaintiff instituted the suit (Annexure P/2) before the learned trial Court for declaration of possession and permanent injunction.

3. The respondents/defendants in their written statement denied the plaint averments specifically on the ground the plaintiffs have not stated that prior to 50 years, on which date and from whom the suit property was purchased, what was the sale consideration and when the possession of suit property was taken. It was stated in written statement that the plaintiffs have not made it clear that as to why they have not recorded their name in revenue record after purchasing the suit property and also failed to disclose that earlier on whose name the suit property was recorded and not filed any document thereto. The respondents/defendants further stated that the plaintiffs are not in possession of the suit property.

4. In these circumstances, the petitioners/plaintiffs moved an application under Order 23 Rule 3 of the CPC for withdrawal of the suit with liberty to institute a fresh suit on the ground of formal defect.

5. The respondents/defendants filed their reply to the application filed by the plaintiffs under Order 23 Rule 3 of CPC stating therein that the suit is pending since 2015 and the same is fixed for final hearing & and the plaintiffs are trying to fulfill/remove the lacuna at this stage.

6. Learned counsel for the petitioners submits that the impugned order dated 17.12.2021 passed by the learned Civil Judge Class-I is bad in law, perverse, illegal, thus liable to be set aside. The learned trial Court wrongly concluded that the suit is not suffering from any formal defect, despite in his application pleaded that they failed to plead in plaint that when and