C A V Judgment

Hon'ble Shri Bibhu Datta Guru, J

NAFR

(Cause-title taken from Case Information System)

1. By the present appeal under Section 100 of the CPC, the appellant/defendant has assailed the judgment and decree dated 25/10/2005 passed by the learned District Judge, Kabirdham (C.G.) in Civil Appeal No. 8-A/2005 (Smt. Radhabai & Others v. Ramesh & Another), whereby the first appellate Court allowed the appeal preferred by the plaintiffs/respondents and reversed the judgment and decree dated 24/03/2005 passed by the II Civil Judge, Class-I, Kawardha in Civil Suit No. 94-A/2003 {Ghanshyam (since deceased) through LRs Smt. Radhabai & Others v. Ramesh & Another}, thereby setting aside the dismissal of the suit filed by the plaintiffs/respondents.

2. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

3. The instant Second appeal was admitted on 07/03/2006 for hearing on the following substantial question of law?

“Whether the Lower Appellate Court failed to evaluate the material evidence while reversing the judgment and decree passed by the trial Court?”

4.

(a) The facts of the case, in brief, are that the original plaintiff Ghanshyam instituted a civil suit against the defendants in respect of the disputed land bearing Khasra No. 230, admeasuring 2.00 acres, situated at Village Lohara, Tahsil Kawardha, District Kabirdham. The suit was filed seeking recovery of possession of the suit land, permanent injunction restraining the defendants from interfering with the plaintiffs’ possession, declaration that the sale deed dated 01/05/1973 is valid and binding upon defendant No. 1, and further declaration that the orders dated 22/10/2001, 23/10/2001 passed in Revenue Case No. A/70/2001 and order dated 31/05/2002 passed in Case No. 254/2001 are not binding upon the plaintiffs.

(b) It is an admitted position between the parties that the suit land bearing Khasra No. 230, admeasuring 2.00 acres, is recorded in the revenue records in the names of the plaintiffs. It is also not in dispute that defendant No. 1 is in possession of the said land. Earlier, a dispute arose between the plaintiffs and defendant No. 1, which led to proceedings under Sections 145 and 146 of the Code of Criminal Procedure, wherein, by order dated 31/05/2002 passed in Case No. 254/2001, possession of defendant No. 1 over the suit land was recognized. It is further pleaded that deceased Ghanshyam (original plaintiff) had also filed an application under Section 250 of the Chhattisgarh Land Revenue Code before the Nayab Tahsildar, Lohara.

(c) According to the plaintiffs, the suit land was originally purchased by deceased Ghanshyam vide Ex.P/1 by way of a registered sale deed dated 01/05/1973 from Nandram and others for a consideration of ₹1,000/-. After purchase, the name of the deceased Ghanshyam was duly recorded in the revenue records. Upon his death, the names of the plaintiffs, being his legal heirs, were mutated in the revenue records. It is further pleaded that the suit land was being cultivated through sharecropping (Adhiya) and defendant No. 1 was working as an Adhiyadar under the deceased. However, taking undue advantage of the situation, defendant No. 1 started asserting his own rights over the suit land and refused to hand over possession to the plaintiffs. Disputes arose between the parties, culminating in proceedings under Sections 145 and 146 CrPC, wherein possession was declared in favour of defendant No. 1. Aggrieved thereby, the plaintiffs instituted the present suit.

(d) Defendant No. 1 filed a written statement denying the plaint averments and also preferred a counter-claim claiming ownership over the suit land on the basis of adverse possession. It was contended that the land was not sold but was mortgaged by Nandlal Yadav for a sum of ₹1,000/-, with possession delivered to defendant No. 1, and that the plaintiffs, by playing fraud, got the sale deed executed instead of a mo