Mst.Devmuniyan And Others v. Mst.Vaishakhi And Others

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR S.A. No. 263 of 2003

1. Mst. Devmuniya Wd/o Nandas, Caste - Panika, aged about 55 years, R/o Village - Jhinpuripara, P.S. Lakhanpur, Tahsil Ambikapur, District Surguja (C.G.)

2. Smt. Samudri D/o Nandas, aged about 35 years, R/o Village - Jhinpuripara, P.S. Lakhanpur, Tahsil Ambikapur, District Surguja (C.G.)

3. Smt. Dhanesari D/o Nandas, aged about 30 years, R/o Village - Jhinpuripara, P.S. Lakhanpur, Tahsil Ambikapur, District Surguja (C.G.) ---- Appellants / Plaintiffs

Versus

1. Mst.Vaishakhi W/o Chighwadas, aged about 50 years, R/o Village Kusu, P.S. Ambikapur, District Surguja (C.G.)

2. Smt. Shanti D/o Chighwadas, aged about 30 years, R/o Village Kusu, P.S. Ambikapur, District Surguja (C.G.)

3. The State of M.P. (Now C.G.) through Collector, Surguja, Ambikapur (C.G.) ---- Respondents For Petitioners :

Mr. A. K. Prasad, Advocate.

For Respondent No. 3/ State :

Mr. Arun Sao, Dy. Advocate General Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 29/08/18 1.

The plaintiffs have filed a suit for declaration of title and permanent injunction stating inter-alia that the plaintiff No. 1 is widow of Nandas. The defendant No. 1 also claimed to be wife of Nandas and defendant No. 2 claimed to be daughter of Nandas. The trial Court recorded a finding that plaintiff No. 1 is wife of Nandas and also recorded that defendant No. 1 is also the wife of Nandas and the defendant No. 2 is the daughter of Nandas and the defendants No. 1 and 2 have filed a counter claim and claimed for suit property. The trial Court dismissed the suit of the plaintiffs as well as the

counter claim of the defendants. Both the parties filed the first appeal before the First Appellate Court and the First Appellate Court reversed the finding of the trial Court holding that defendant No. 1 is not the wife of Nandas and defendant No. 2 is not the daughter of Nandas and further held that no document showing the suit land in existence has been filed. As such, for want of documents, no decree can be granted against which the plaintiffs have filed this second appeal under Section 100 of the Code of Civil Procedure.

2.

Learned counsel for the appellants / plaintiffs submits that both the Courts have concurrently committed legal error in not granting decree in favour of the plaintiffs as it involves the substantial question of law. 3.

I have heard learned counsel for the appellants/ plaintiffs. 4.

The trial Court and the First Appellate Court both have concurrently recorded a finding that merely on the basis of oral evidence no decree can be granted as there is no documents on record to demonstrate the existence of the suit land. As such, neither the title nor the land in dispute has been found therefore, both the Courts have dismissed the suit. The aforesaid finding recorded by the two Courts below are finding of fact based on material available on record. I do not find any merit in the second appeal. 5.

Accordingly, the second appeal deserves to be and is hereby dismissed.

Sd/- (Sanjay K. Agrawal) Judge Priyanka