Ghasiya v. Kartik Ram Dead Through Lrs

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR SA No. 77 of 2004

1. Ghasiya S/o Punnu Gabel, Aged about 27 Years,

2. Punnu Gabel S/o Bejal, Aged about 65 Years, Both R/o Village Aurda, Tahsil Kharsiya, District Raigarh (Chhattisgarh) ---- Appellants

Versus

• Kartik Ram (Dead) Through LRs.

1. (a) Bhakali, S/o Late Kartikram, Aged about 39 Years,

1. (b) Buttu @ Ishwar, S/o Kartikram, Aged about 36 Years,

1. (c) Samaru S/o Kartikram, All R/o Village Aurda, Tahsil Kharasiya, District Raigarh, (Chhattisgarh) ---- Respondents ------------------------------------------------------------------------------------------------------------- For the Appellants :

Shri Parag Kotecha, Advocate For the Respondents :

Shri Akhtar Hussain, Advocate.

---------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 26/08/2016 The plaintiff Ghasiya and his father Punnu Gabel filed a suit only for permanent injunction stating inter-alia that the sale made by mother of plaintiff No.1 and the wife of plaintiff No.2 on 05-04-1977 and 06-05-1977 to the defendant is void and prayed in alternative that they be granted permanent injunction. The Trial Court held that the sale was made by the plaintiff No.1's mother as a guardian and the suit is hopelessly barred by limitation against which First Appeal was preferred which was dismissed. Feeling dissatisfied against the judgement of the First Appellate Court, the

S.A. No. 77 of 2004 plaintiffs have preferred second appeal under Section 100 of the Code of Civil Procedure (for short "CPC').

2.

Shri Parag Kotecha, learned counsel appearing for the appellant/ plaintiff would submit that both the Courts below have committed legal error in dismissing the suit and as the permission of sale from District Judge under Section 8(2) of Hindu Minority and Guardianship Act (for short 'the Act') was required. It has wrongly been dismissed by both the Courts below as such findings recorded by two Courts below are perverse and contrary to record.

3.

I have heard learned counsel for the parties and have gone through the record with utmost circumspection. 4.

The Trial Court and the First Appellate Court have clearly recorded finding that the sale was made by mother of plaintiff No.1 and wife of plaintiff No.2 to Defendant No.1 for necessity and the sale has been made as a guardian by mother of plaintiff No.1 and wife of plaintiff No.2 and therefore, there was no legal necessity for seeking permission of the Court under Section 8(2) of the Act. Both the Courts below have also dismissed the suit absolutely barred by limitation. 5.

The plaintiffs even did not seek relief of declaration of title and also did not seek cancellation of sale deed and only sought relief of permanent injunction and in alternative, possession was sought. The finding recorded by both the Courts below are based on evidence available on record as the finding of fact. The finding of two Courts below holding the suit to be hopelessly barred by limitation is also

S.A. No. 77 of 2004 finding of fact based on record. I do not find any illegality in the impugned judgement and appeal involves no substantial question of law for admission.

6.

Accordingly, the appeal deserves to be and is hereby dismissed. No cost(s).

Sd/- (Sanjay K. Agrawal) JUDGE Kvr