1 2025:CGHC:20338 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 290 of 2024 1 - Ravindra Kumar Nanda S/o Late Nemnath Nanda Aged About 83 Years R/o Dak Banglaw Ward, Dhamtari, District : Dhamtari, Chhattisgarh ... Appellant versus 1 - Yogesh Doshi S/o Hargovind Doshi Aged About 59 Years R/o Sameer Automobile, Bastar Road, Dhamtari, Naiyyer Engineering Works, Bastar Road, Dhamtari, Tahsil And District Dhamtari, Chhatttisgarh (Defendant) 2 - Jugga Devi (Dead) Lucky Sanklecha S/o Hemchand Sanklecha Aged About 26 Years R/o Sadar Bazar, Dhamtari, Tahsil And District Dhamtari, Chhatttisgarh (Plaintiffs) 3 - Bhaiyoo @ Darshan Sanklecha S/o Praveen Kumar Sanklecha Aged About 12 Years Through Natual Gaurdian Respondent No. 5, R/o Sadar Bazar, Dhamtari, Tahsil And District Dhamtari, Chhatttisgarh (Plaintiffs) 4 - Hemchand Sanklecha S/o Late Ranulal Sanklecha Aged About 60 Years R/o Amapara Ward, Dhamtari, Tahsil And District Dhamtari, Chhatttisgarh (Plaintiffs) 5 - Praveen Kumar Sanklecha S/o Late Ranulal Sanklecha Aged About 48 Years R/o Sadar Bazar, Dhamtari, Tahsil And District Dhamtari, Chhatttisgarh (Plaintiffs) 6 - Lalit Kumar Sanklecha S/o Late Ranulal Sanklecha Aged About 50 Years R/o Ganjpara, Balod, Tahsil And District Balod, Chhattisgarh (Plaintiffs) ... Respondents (Cause title taken from Case Information System) 2 For Appellant : Mr. H.B. Agrawal, Senior Advocate with Mrs. Preeti Yadav, Adv. For Respondents No.3 to 5 For Respondents No.1 & 6 : : Mr. Shobhit Koshta, Adv., on instruction None (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 02/05/2025 1. With the consent of both the parties, heard on I.A. No.02/2024, application for permission to file appeal. 2. This second appeal has been preferred under Section 100 of the Code of Civil Procedure (for short “CPC”) by proposed appellant, seeking permission to challenge the judgment and decree dated 30.01.2024 (Annexure-A) passed by the Upper District Judge, Dhamtari, District Dhamtari (C.G.) in Civil Appeal No.24A/2018 upholding the judgment and decree dated 23.11.2017 passed by First Civil Judge, Class-I, Dhamtari (C.G.) in Civil Suit No.10A/16, whereby learned trial Court allowed the civil suit filed by original respondent No.2/plaintiff namely; Jugga Devi and granted decree in her favour entitling her to get vacant possession of the suit property (shops) and further authorising her to get arrears of rent. 3. Learned counsel for the proposed appellant would submit that the Civil Suit No.84A/1985 (Jugga Devi vs. Nemnath Nanda) was dismissed by Civil Judge, Class-I, Dhamtari, District Dhamtari (the then District Raipur), but in Appeal bearing No.28A/1987, civil appeal was allowed and decree of title and possession over the suit property was granted in favour of the plaintiff -Jugga Devi, which was upheld upto the Hon’ble Supreme Court. He would further submit that in pursuance of that decree, symbolic possession of the suit property was obtained by plaintiff -Jugga Devi vide execution proceeding No.84A/1985, but during pendency of the aforesaid 3 civil suit, shops over the suit property was constructed by Nemnath Nanda, where he kept 14 tenants. He further submitted that after getting symbolic possession, instant eviction Suit bearing No.10A/16 was filed by original plaintiff -Jugga Devi against tenants, which was allowed vide judgment and decree dated 23.11.2017 in favour of the plaintiff and first appeal preferred by tenant bearing No.24A/2018 was dismissed vide impugned judgment and decree dated 30.01.2024. He would further submit that disputed shops situated over the suit property were constructed by Late Nemnath Nanda (father of the proposed appellant) but applicant/proposed appellant was not made party in Civil Suit No.10A/16. Application filed by him under Order 1 Rule 10 of the Civil Procedure Code (for short “CPC”) was also rejected by the trial Court. He also filed similar application before the First Appellate Court, but the same was also rejected by it observing it in para 44 of the impugned judgment dated 30.01.2024 passed by the First Appellate Court. He further submits that since proposed appellant -Ravindra Kumar Nanda is son of Nemnath Nanda, who had raised objection in execution Case No.84A/1985 with regard to execution of decree, as such, he was necessary party in eviction Suit bearing No.10A/16 filed by original plaintiff -Jugga Devi, despite that, his applications were rejected by trial Court as well as First Appellate Court, that too, by imposing cost, therefore learned counsel submits that in aforesaid fact situation, proposed appellant -Ravindra Kumar Nanda may be permitted to file appeal challenging the impugned judgment and decree dated 30.01.2024 (Annexure-A) passed by Upper District Judge, Dhamtari, District Dhamtari in Civil Appeal No.24A/2018. It is further submitted that since proposed appellant was necessary party in eviction suit filed by original plaintiff -Jugga Devi, hence he prays that I.A. 4 No.02/2024 may be allowed and proposed appellant may be permitted to file appeal. 4. Per contra, learned counsel appearing for respondents No.3 to 5 (LRs. of late Jugga Devi), who are main contesting party, would submit that in pursuance of decree granted in favour of original plaintiff- Late Jugga Devi, which was upheld upto the Hon’ble Apex Court, she was granted symbolic possession in execution Case No.84A/1985. Even various objections raised by proposed appellant herein were rejected by the Executing Court vide order dated 26.08.1991, which was not challenged by him, therefore, it has attained finality. He further submitted that symbolic possession is also a valid possession, therefore, it is binding upon proposed appellant. Further, while pendency of Civil Suit No.10A/16 (Jugga Devi vs. Yogesh Doshi), proposed appellant -Ravindra Kumar Nanda had filed application under Order 1 Rule 10 of the CPC, which was rejected by the trial Court vide order dated 22.02.2016, but that order was not challenged by him and he again filed similar application before the First Appellate Court in Civil Appeal No.24A/2018, which was rejected by First Appellate Court by imposing cost of Rs.5000/- observing therein that the order dated 22.02.2016 has attained finality, despite that, such application has been filed. He further submitted that since order dated 22.02.2016 has attained finality, therefore, it cannot be agitated subsequently and therefore, proposed appellant cannot be permitted to file appeal by making similar prayer vide I.A. No.02/2024, which has already been decided and rejected by the trial Court and the First Appellate Court and the same has attained finality years back. Hence, it is prayed that I.A. No.02/2024 (application for permission to file appeal) filed by proposed appellant may be rejected. 5 5. I have heard learned counsel for the parties and perused the material available on record. 6. Undisputedly, the decree of title and possession in respect of the suit property (shop) was granted in favour of original plaintiff -Jugga Devi in First Appeal No.28A/87, which was upheld upto the Hon’ble Apex Court and in pursuance of that decree, symbolic possession over the suit property was granted on 27.08.1991 to original plaintiff -Jugga Devi in execution Case No.84A/1985. Further, when objection raised by proposed appellant in that execution proceeding was rejected by the Executing Court on 26.08.1991, then, he ought to have challenged that order by seeking appropriate relief, but it seems that he did not challenge it at that time. 7. Though, in execution proceeding under Order 21 Rule 36 of the CPC, the symbolic possession is delivered by the officer of the Court to original plaintiff -Lt. Jugga Devi and proclamation is made to the occupants of the disputed property that the plaintiff has recovered it from Nemnath Nanda and this is the only way in which the decree of the Court awarding possession to the plaintiff, can be enforced, therefore, and as in contemplation of law, both parties must be considered as being present at the time when delivery is made. In the aforesaid circumstances, delivery of possession of the suit property was given as against the defendant / judgment debtor which must be deemed equivalent to actual possession as has been held in the matter of Gambhira vs. Smt. Pajju Baja reported in 1987 JLJ 670. Therefore, proposed appellant cannot raise objection in respect of granting symbolic possession of the suit property to the original plaintiff -Jugga Devi / her LRs. 8. Perusal of records of the Courts below as well as impugned judgment of 6 the First Appellate Court, particularly para 44 of the impugned judgment dated 30.01.2024 passed in Civil Appeal No.24A/2018 would show that earlier, proposed appellant -Ravindra Kumar Nanda had filed application under Order 1 Rule 10 of the CPC, which was dismissed by the trial Court vide order dated 22.02.2016, but it was not challenged by the proposed appellant, hence the same has attained finality. The proposed appellant again filed application under Order 1 Rule 10 of the CPC (Annexure-F) before the First Appellate Court, which was dismissed by it vide para 49 of the impugned judgment by imposing cost of Rs.5000/-, as despite attaining finality of the order dated 22.02.2016, proposed appellant again filed said application seeking similar relief. Having considered the fact that earlier the order dated 22.02.2016 passed by the trial Court was not challenged by proposed appellant, as such, learned First Appellate Court has rightly dismissed his subsequent application seeking alike relief, which has already been denied by the trial Court and the same has attained finality. 9. Thus, objection application filed by the proposed appellant under Order 21 Rule 36 read with Sections 47 & 51 of the CPC against execution proceeding was rejected by the Executing Court in execution Case No.84A/1985, but the same was not put to challenge by him. Similarly, his application filed under Order 1 Rule 10 of the CPC in instant Civil Suit No.10A/2016 was also rejected by the trial Court vide order dated 22.02.2016, which has also attained finality in absence of any challenge. Therefore, it cannot be said that symbolic possession of the suit property was given to the original plaintiff -Jugga Devi behind the back of proposed appellant or order dated 22.02.2016 was not in the knowledge of the proposed appellant. 7 10. Since aforesaid orders were not challenged by proposed appellant in the earlier stage and those orders have attained finality, therefore, in view of above discussion and considering the totality of the facts of the case, I do not feel inclined to allow I.A. No.02/2024; application for permission to file appeal by the proposed appellant, therefore, aforesaid application is rejected. Consequently, proposed appeal is also rejected. 11. The parties to bear their own cost. 12. Pending application(s), if any, stands disposed of. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.05.14 10:40:24 +0530