ISHWAR GUPTA (DEAD) Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered in this plaintiffs' second appeal are as under:-

(2.) The above-mentioned substantial questions of law are required to be answered in following facts:- 2. 1 The appellants herein/plaintiffs filed a suit for declaration of title and permanent injunction stating inter alia that the suit tank situated at Khasra No.705, area 1.40 acres, and Khasra No.706, area 2.7.0 acres, is held by the plaintiffs and they are in title and possession holders of the said tank, and since 1928-29, the lands are recorded in the names of their ancestors' Pyarelal and others and in Wajib-ul-urz it is recorded in the names of Moharsay and others, they are maintaining the suit tank since long and they are irrigating their lands from the water of the suit tank and they are in possession of the said tank since last 100 years. It was further pleaded that on 10-1-2005, defendant No.3/respondent No.3 herein started some work for filling up the tank holding it to be leased out to him by defendant No.2 Gram Panchayat and then enquired in the matter on which they came to know that in the revenue records, the name of the Government of Chhattisgarh is recorded in the suit tank. It was also pleaded that the suit tank has already been settled in favour of ancestors of the plaintiffs under the provisions of Section 5(f) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (for short 'the Act of 1950') and therefore since a cloud has been cast on their title holding to be vested in the name of the Government, they decided to file suit for declaration of title and thereafter, they served notice under section 80(1) of the Code of Civil Procedure, 1908 and filed suit for declaration of title and permanent injunction. 2. 2 Defendant No.1/respondent No.1 herein - the State of Chhattisgarh, filed its written statement stating inter alia that the suit tank has already been vested in the State Government under the provisions of Section 251 of the Chhattisgarh Land Revenue Code, 1959 (for short 'the Code of 1959') after due process of law by the competent authority and the ancestors of the plaintiffs were duly noticed and after following the due procedure of law, it has been vested in the Government and, therefore, that order has become final and thus, the plaint deserves to be dismissed. 2. 3 The Gram Panchayat has also filed written statement in similar lines. No written statement was filed on behalf of the respondent No.3 herein.

(3.) The trial Court framed six issues in order to decide the suit. The trial Court upon appreciation of oral and documentary evidence on record by its judgment and decree dated 30-6-2007 dismissed the suit finding inter alia that (1) the plaintiffs are title holders and possession holders of the suit land; (2) the suit tank was settled in favour of the ancestors of the plaintiffs under Section 5(f) of the Act of 1950; (3) the suit tank had already been vested with the Government in accordance with law and the suit filed is beyond the period of limitation; and (4) the suit has properly been valued and the court fees has been paid properly.