1 2025:CGHC:58199 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 116 of 2010 1 – Smt. Sarojani Bai W/o Hirau lal Yadav, aged about 30 years, R/o Village Badtanga- Paraspani Via. Post Chirmiri, District Manendragarh (C.G.) 2 – Smt. Heera Bai Yadav W/o Chhatram Yadav, aged about 50 Years, R/o Premnage, M-30 Rajagamal Post Ompur Via Koraba District Koraba (C.G.) 3 – Dinbandhu S/o Anant Ram Ravat aged about 34 years R/o Beerpara Sarangarh, Dist Raigarh. ... Appellant(s) versus 1 - Daridra Narayan Pujari Aged About 33 Years S/o Rudra Narayan, R/o Veerpara, Sarangarh, Distt.-Raigarh CG. ... Respondent(s) For Appellant(s) : Mr. S. R. J. Jaiswal, Advocate. For Respondent(s) : Mr. Raja Sharma, Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board 27/11/2025 1. The present first appeal under Section 96 of the Code of Civil Procedure, 1908 has been filed by the defendant Nos. 1 to 3 against the impugned judgment and decree dated 31.03.2010, passed by learned Additional District Judge, Sarangarh, District Raigarh in Civil Suit No. 36A/1999, whereby the civil suit filed by the plaintiff for declaration of title and possession of the suit ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.12.12 12:31:37 +0530 2 property shown in schedule - A of the plaint situated at ward No. 9, Sarangarh, District Raigarh, has been decreed. 2. For the sake of convenience, the status of the parties shown in the civil suit are being taken in the present appeal also. 3. The plaintiff had filed a civil suit for declaration of his title and for possession of the suit property which is part of a house situated at ward No. 9, Sarangarh which is shown by marking of A,B,C,D, in the sketch map annexed with the plaint as schedule A. The plaintiff has pleaded in the plaint that the suit property is recorded in the municipal records in his name and he acquired it through registered gift deed dated 23.05.1979 from ex-rular Raja Naresh Chandra Singh and since then he is in title and possession holder of the suit property. He got mutated his name in the revenue and municipal records. The defendants are near relatives of the plaintiff and all of them were having cordial relation. Earlier they were residing at Panzari Lane, Sarangarh, in a house owned by the father of the plaintiff. Since the defendants were not having sufficient accommodation for their residence, they asked the plaintiff to permit them to reside at the suit property and then the plaintiff has given licence to the defendant to reside there at the suit property in the year 1989. The remaining part of the house is in possession of the plaintiff and only the A,B,C,D part of the suit property is in possession of the defendants. In the year 1990 when the plaintiff was in need of the suit property, he asked the defendants to vacate the same but defendants were evaded to handover the vacant possession of the suit property to the plaintiff and raised a dispute before the Sub Divisional Magistrate, Sarangarh under Section 145 of the Cr.P.C. The said proceeding under Section 145 of the Cr.P.C. was decided by the Sub Divisional Magistrate, Sarangarh and the possession of the defendants were held, over the suit property. The criminal revision filed by the plaintiff before the learned Additional Sessions Judge, Raigarh was also dismissed on 08.09.1995 and then the present civil suit has 3 been filed for declaration of title and possession of the suit property against the defendants. 4. The defendants contested the claim of the plaintiff, denied his title over the suit property and filed their written statement. In the written statement the defendants have pleaded that the plaintiff has not specifically disclosed the date on which he put in possession of the suit property. They would also pleaded that ex-rular Raja Naresh Chandra Singh was not competent to execute the gift deed in favour of the plaintiff in the year 1979 as the suit property belongs to joint family and there was no partition between Raja Naresh Chandra Singh and his other family members. The plaintiff is creating nuisance since 1978-79 to grab the property in which the defendants are in possession since long. When the plaintiff created nuisance, the defendants made a police complaint and then the proceedings under Section 145 of Cr.P.C. was initiated in which the Sub Divisional Magistrate, Sarangarh has found that defendants are in possession of the suit property since more than 50 years. The defendants have specifically denied that the suit property was given to them by the plaintiff on licence to reside there. Prior to 1978 the plaintiff has never disputed the possession of the defendants over the suit property. The suit is barred by limitation and no proper valuation of the suit has been done by the plaintiff. It is further pleaded by the defendants that since 60 years back, Smt. Laxmi Bai and her husband Anant Ram came to Sarangarh and started working under the ex-rular Raja Naresh Chandra Singh. They provided a house situated at Khasra No. 729 for their residence. In the year 1947, after abolition of the proprietory rights, the ancestors of the defendants were removed from services of late Raja Naresh Chandra Singh, however, they remain in possession of the suit property continuously as the same was given to them on their ownership rights. The gift deed dated 23.05.1979 is forged and fabricated document and no title has been passed in favour of the plaintiff by the said document. All the other members of the 4 family who were party to the proceeding under Section 145 of Cr.P.C. have not been made as a party defendant in the present suit and there is defect of non-joinder of the necessary party to the suit. 5. On the basis of the pleadings of the parties, the learned trial Court has framed the following issues: " वाद्ቚश्न 1. क्या वाद वाद्ቇस्त भूमि का स्वात्वाधिकारी है। 2. क्या ्ቚमितवाद गण न अनसूची "अ" ! वामिण"त वाद्ቇस्त कान ! अवा रूप सू वाद का% बेदखल कारी स्वाया) काब्जा कारी धिलया है,। यामिद है- त% ्ቚभूवा। 3. क्या वाद न दवा का सूमिचीत ल्या-कान कारी सूमिचीत न्यायाशुल्का चीस्प मिकाया है। अमित . वाद्ቚश्न 4. क्या वाद का दवा सूयाबेधित है।" 6. The plaintiff has examined himself as PW-1, Dr. Khem Singh Thakur PW-2, Sonau Jaiswal PW-3 and have relied upon the document Ex.P/1 which is the gift deed (Bakshishnama) dated 23.05.1979, Ex.P/2 is the sketch map of the suit property, Ex.P/3 is the declaration with respect to the construction of the house, Ex.P/4 is the copy of notice dated 28.04.1997 given to the defendants, Ex.P/5 and Ex.P/6 are the postal receipts, Ex.P/7 is the copy of gift deed (Bakshishnama) dated 23.05.1979, Ex.P/8 and Ex.P/9 are text receipts. 7. The defendants have examined Deenbandhu DW-1, Bhurathu Dewangan DW-2, Mahesh Giri DW-3, and they relied upon the documents Ex.D/1, which is the order dated 07.03.1994 passed by Sub Divisional Magistrate, Sarangarh Ex.D/2 with the reply the notice dated 29.04.1997, Ex.D/3 and Ex.D/4 are the postal receipts and acknowledgment, Ex.D/5 is the demand notice issued by the Nagar Panchayat, Sarangarh, Ex.D/6 is the self- assessment form of the property tax, Ex.D/7 is the demand raised by the Tahsildar, Sarangarh with respect to the land revenue but Ex.D/8, Ex.D/9 and Ex.D/10 are the documents relates to the property tax paid before the Nagar Panchayat, Sarangarh. 5 8. 5 8. After considering the evidence available on record produced by the parties, the learned trial Court has decreed the suit of the plaintiff holding that the plaintiff has acquired the title over the suit property. In the year 1979 by virtue of the gift deed dated 23.05.1979 Ex.P/1, and after revocation of the license by the plaintiff, he is entitled for vacant possession of the suit property from the defendants. The said judgment and decree passed by learned trial Court is under challenged in the present first appeal. 9. Learned counsel for the appellant would submit that the defendants are residing in the suit property prior to 1950 as per their own right and the suit property was given to their ancestors by the ex-rular Raja Naresh Chandra Singh as their ancestors were working under the said king Raja Naresh Chandra Singh. The suit house was provided to them under their ownership for their residents. In the order dated 07.03.1994 passed by Sub Divisional Magistrate, Sarangarh, the defendants were found in possession since 1950 which the plaintiff has also admitted in Para -16 of his evidence that he made statement before the SDM Court that the defendants are in possession of the suit property prior to 1950. Although the defendants have not challenged the gift deed dated 23.05.1979, but looking to their long possession, the plaintiff is liable to be non-suited for possession of the suit property. He would also submits that the suit of the plaintiff is barred by limitation as he has not filed the suit within 3 years from the occurrence of the cause of action. He would submits that in the year 1992, the dispute arose between the parties when the plaintiff tried to dispossess the defendants from the suit property, however, he has filed the suit property in the year 1997 which is apparently beyond the period of 03 years, therefore, the suit of the plaintiff is barred by limitation. Yet the learned trial Court has passed the decree in favour of the plaintiff which is liable to be set aside. 10. On the other hand, learned counsel appearing for the Respondent would supported the impugned judgment and decree and would submit that the 6 defendants have not challenged the gift deed dated 23.05.1979, Ex.P/1 and they themselves have not claimed their own right over the suit property. Once the plaintiff title is not challenged and his title is found proved over the suit property and the defendants have failed to prove their title over the suit property they cannot remain in possession of the suit property and bound to handover the vacant possession of the same to the title holder. The suit of the plaintiff is within limitation as he has revoked the license in the year 1997 by issuing notice to the defendants Ex.P/4 and thereafter within the limitation period he filed the suit. Even otherwise the plaintiff has filed the suit for declaration of title as well as possession of the suit property for which the limitation provided under the limitation Act is 12 years, therefore, the suit of the plaintiff is well within the limitation and the evidence produced by the plaintiff have rightly been appreciated by the learned trial Court and rightly passed judgment and decree which is not required to be interfered with. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. The plaintiffs’ claim is based on the registered gift deed dated 23.05.1979 (Ex.P/1) which was executed by ex-rular Raja Naresh Chandra Singh in favour of the plaintiff. His claim is that by virtue of the said registered gift deed, he acquired title over the suit property and came into possession of the same. In the year 1989, he gave licence to the defendants to reside there as they are his relatives but they are showing their right and dispute arose between the parties which culminated into the proceeding under Section 145 of Cr.P.C. in which it was held that the defendants are in possession of the suit property. The challenge of the order passed by SDM, Sarangarh was negated in the criminal revision also and then the present civil suit has been filed. Undisputedly the said gift deed dated 23.05.1979 has not been challenged by the defendants. The defendants have not filed any document with respect to their title over the suit property in which they are found in 7 possession. The physical possession of the defendants have not been denied by the plaintiff and he filed the suit for possession based on his title. It is the specific case of the plaintiff that when the dispute arose between the parties and proceeding under Section 145 of Cr.P.C. was initiated and decided against the plaintiff the cause of action to file the present suit arose. 13. The plaintiff PW-1 Daridra Narayan has stated in his evidence that the ex- rular Raja Naresh Chandra Singh has executed a gift deed on 23.05.1979 and he obtained the title over the suit property by the said registered gift deed and came into possession. Since his father was an employee of ex- rular Raja Naresh Chandra Singh, therefore, the suit house was given to him. The defendants were in difficulties of their residence and his father gave them license to reside over the suit house in the year 1989 on their assurance that will vacate the premises within one year. In the year 1990 when they asked to vacate the premises the defendants denied to vacate it and raise a dispute under Section 145 of Cr.P.C. before the SDM, Sarangarh in the year 1992. In cross-examination he stated that on the day when the gift deed executed they got possession of the suit house. He further admitted that the dispute with the defendants was started since 1989-90 with respect to the possession of the suit house and after passing of the order by the SDM he filed the suit within the limitation period. 14. PW-2, Dr. Khem Singh Thakur and PW-3, Sanau Jaiswal have also proved that ex-rular Raja Naresh Chandra Singh executed a registered gift deed in favour of the plaintiff Daridra Narayan and he was in possession of the suit property. In cross-examination of all these witnesses the defendant could not rebut that the property was earlier owned by ex-rular Raja Naresh Chandra Singh and he was competent to alienate the same. Under his lawful title he executed a gift deed on 23.05.1979 in favour of the plaintiff and none of the parties have challenged the said registered gift deed executed in favour of the plaintiff. The claim of the defendants are also that the ex-rular Raja 8 Naresh Chandra Singh have given the suit house to them for the residence, however, there is no document with respect to giving the said house to them by any mode. 15. DW-1, Deenbandhu has admitted in Para-22 of his cross-examination that he is having no document that the ex-rular Raja Naresh Chandra Singh has given the suit house to his parents. He voluntarily stated that it was the oral transaction. He also admitted that he or his parents have never tried to get their name mutated in the municipal/revenue records of the suit house. From the evidence of DW-1, it transpires that he only claimed that they are in possession since 1943-44 over the suit property and their claim is based on the order passed by SDM under Section 145 of Cr.P.C. that they are in possession over the suit property. 16. From the document Ex.P/1 the plaintiff has proved his title over the suit property. On 28.04.1997 he terminated the license given to the defendants and claimed vacant possession of the suit property this notice dated 28.04.1997 Ex.P/4 was replied by the defendants on 29.04.1997 in which they only replied that in the proceedings under Section 145 of Cr.P.C. the SDM, Sarangarh and learned Second Additional Sessions Judge, Raigarh have maintained the possession of the defendants. They have not specifically denied in the reply of notice that they are not the licensee of the plaintiff or the plaintiff have no right or title over the suit property. The defendants’ claim is based on the order dated 07.03.1994 passed by SDM, Sarangarh that their possession has been hold in 145 Cr.P.C. proceeding. In the present case the plaintiff is claiming vacant possession of the suit property and his claim based on title. Admittedly the defendants are in possession of the suit property and when the defendants have failed to prove the source of their possession or title over the suit property, the plaintiff cannot be non-suited particularly when he has proved his title over the suit property by virtue of the gift deed dated 23.05.1979 (Ex.P/1). The defendant 9 have failed to produce any document that they are in possession of the suit property under any lawful authority. 17. The learned trial Court has also considered the transfer of the suit property by "ab original tribe" to the person belonging to "non ab original tribe" by virtue of the gift deed dated 23.05.1979. The defendants have raised objection that in view of the provisions of Section 165 (6) and 170(B) of Chhattisgarh Land Revenue Code, 1959, the suit property cannot be gifted to the person belonging to "non ab original tribe" and it is void ab initio and the plaintiff does not acquire any title by the said deed. To this objection of the defendants, the plaintiff have submitted that the provisions of 170-B of the Land Revenue Code, 1959 is applicable to the agricultural land of the person belonging to "ab original tribe" and if the property is non agricultural property or diverted land or a house in the urban area, there is no bar in transferring by the person belonging to "ab original tribe" in favour of the person belonging to "non ab original tribe". Relying upon the judgment passed by the Madhya Pradesh High Court, in the matter of L. Das Vs. Board of Revenue reported in 1973 MP Revenue Nirnay 58 (HC) and Mewalal Kanhaiyalal vs Jankibai And Ors. reported 1994 MP Revenue Nirnay 1992 held that the transaction in favour of the plaintiff is not hit by the provisions of Section 165(6) and 170(B) of Chhattisgarh Land Revenue Code, 1959 which in the opinion of this Court is correctly appreciated by the learned trial Court. 18. Another objection of limitation to file the suit was raised by the defendants and the learned trial Court has framed additional issue No. 4 for its determination. While considering the limitation to file suit the learned trial Court has considered that in the year 1992, the dispute arose between the parties when the defendants have filed an application under Section 145 of Cr.P.C. challenging the right of the plaintiff over the suit property and on 07.03.1994 the order has been passed by the SDM, Sarangarh and the criminal revision filed by the plaintiff before the learned Sessions Judge, 10 Raigarh is dismissed on 08.09.1995. The plaintiff had challenged the order dated 07.03.1994 passed by SDM, Sarangarh before the learned Sessions Judge, Raigarh in criminal revision which was decided on 08.09.1995, therefore, the learned trial Court has found that after passing of the order on 08.09.1995 by the learned Sessions Judge, Raigarh the plaintiff has filed the suit. Even otherwise the plaintiff has filed the suit for declaration of title and possession, the claim of the plaintiff for possession is based on title. Article 65 of the Limitation Act provided the limitation of 12 years to file the suit for possession based on title and the limitation starts from the time when the possession of the defendant become adverse to the plaintiff. The plaintiff title has been denied by the defendants in the year 1992 when they filed application under Section 145 of Cr.P.C. before the SDM, Sarangarh and thereafter the orders have been passed by SDM, Sarangarh and learned Sessions Judge, Raigarh subsequent to that the plaintiff has terminated the license of the defendant by notice dated 28.04.1997, Ex.P/4 and it has been replied by the defendants on 29.04.1997 Ex.D/2 and thus even if it is assumed that the title of the defendants become adverse to the plaintiff from 1992 i.e. the date when the proceedings under Section 145 of Cr.P.C. was started, the suit has been filed by the plaintiff on 11.09.1997 which is well within 12 years from the date of arising the cause of action. Though the learned trial Court has considered the limitation to file the suit in view of Article 58 of the Limitation Act, Section 14 of the Limitation Act and starting point of limitation from the date of order passed by learned Sessions Judge, Raigarh but in view of the facts of the present case, this Court is of the opinion that the suit of the plaintiff cannot be said to be barred by limitation. 19. From the foregoing discussions and under the facts and circumstances of the case as well as law laid down by the Hon’ble Supreme Court, this Court is of the opinion that the appellant could not demonstrate any palpable perversity in the impugned judgment and decree passed by learned trial Court and 11 decreeing suit in favour of the plaintiff. The first appeal filed by the defendants is liable to be and hereby dismissed. 20. The parties to bear their own costs. 21. A decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge Alok