AFR HIGH COURT OF CHHATTISGARH, BILASPUR SA No. 330 of 2011 Reserved on : 25.11.2021 Delivered on : 14.02.2022

1. Jai Prakash Tiwari, S/o Late Shri Radhe Shyam Tiwari, Aged About 34 Years.

2. Smt. Gayatri Bai, W/o Late Shri Radhe Shyam Tiwari, Aged About 54 Years.

3. Shiv Kumari, D/o Late Shri Radhe Shyam Tiwari, Aged About 32 Years.

4. Shail Kumari, D/o Late Shri Radhe Shyam Tiwari, Aged About 34 Years.

5. Sarla, D/o Late Shri Radhe Shyam Tiwari, Aged About 28 Years. 6. Kiran, D/o Late Shri Radhe Shyam Tiwari, Aged About 26 Years.

All R/o Village- Taga, Tahsil- Akaltara, District- Janjgir-Champa (C.G.)

---- Appellants Versus

1. 1A. Onkar, S/o Bhawani, Aged About 40 Years, R/o Pachri Ghat, Juna Bilaspur, Bilaspur, Tahsil & District- Bilaspur (C.G.)

1B. Mahesh Prasad, S/o Bhawani (Dead)

1C. Annapurna, W/o F.D. Diwan, Aged About 30 Years, R/o Village-Navagarh, District- Durg (C.G.)

2. 2A. Sita Bai, Wd/o Vishnu Prasad Tiwari.

2B. Mani Kumar Tiwari, Aged About 30 Years.

Both R/o Village- Sitamadhi, Korba, Tahsil & District- Korba (C.G.)

3. Ramorama, Wd/o Amritlal (Dead).

4. Santoshi, W/o Hemnarayan Tripathi, Aged About 22 Years.

5. Sandhya, W/o Mahesh Prasad Mishra, Aged About 20 Years.

Both R/o Village- Sariyya, District- Banda (U.P.)

6. State of Chhattisgarh, Through- Collector, Janjgir-Champa, District- Janjgir-Champa (C.G.)

7. Sankata Prasad, S/o Ramdayal Shukla, R/o Village- Tifra, Tahsil & District- Bilaspur (C.G.)

---- Respondents For Appellants : Mr. H.V. Sharma, Advocate.

For Respondent No. 1A & 1B : Mr. Prateek Sharma, Advocate.

For State/Respondent No. 6 : Ms. Smita Jha, Panel Lawyer.

Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. 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 Vs. 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 Vs. 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:-

Hariram (Dead)

Tripatinath Mahatmaram (Dead) Bisesarnath (Dead) = Jamuna Bai (Dead)

Vishnuprasad Amrital Radheshyam Arra Bai (DW-2) (Dead)= (Plaintiff) (DW-1)

Ramorama (DW-3)

Santoshi Sandhya (DW-4) (DW-5)

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, defen