MOHD MUSTAFA Vs. RAMAPATI

JUDGEMENT

(1.) Heard.

(2.) The instant appeal is against the judgment and decree dated 12.05.1998 passed in Civil Suit No.25-A/97 by the Second Additional District Judge, Ambikapur, whereby the suit filed by the plaintiff/appellant was dismissed. The suit was filed by Mohd. Mustafa and Smt. Hiramani for declaration and permanent injunction. As per the plaint pleading the suit property was shown in the schedule A of the plaint, situated at village Kusmi, P.H. No.26 (A), Tehsil Kusmi, District Surguja, it was contended that the house and the superstructure situates over the suit plot. According to the plaintiff before 02.10.1959 the suit land was recorded in the name of Theki S/o Suna, Caste Bargah, they were not covered within the schedule tribe community. The schedule A property was bearing Khasra No.358, admeasuring 0.70 acres which was purchased by Theki from the earlier owner namely Pusa Kisan and Ghasiya Kisan, who were the son of Bhulan and thereafter his name was recorded. The said sale was prior to 2.10.1959. It was stated that Pusa Kisan and Ghasiya Kisan since were not the members of schedule tribe community, as such they were not required to take any permission under Section 165 (6) of the Chhattisgarh Land Revenue Code, 1959 (for short 'the Code, 1959'), consequently the provisions of Section 165 (6) and Section 170-B of the Code, 1959 would not be applicable to them. After the death of Theki, the land was recorded in the name of the legal heirs and name of Sarawati and Janki were recorded. Saraswati and Janki executed two sale deeds one in favour of Mohd. Mustafa on 21.02.1976 which was in respect of land bearing Khasra No.358/2 and another sale deed was executed in favour of Smt. Hiramani in the year 1991. It was stated that after purchase of the land superstructure was raised over the said land and house was constructed and was used other than the agricultural purposes. Subsequently, the revenue case No.312/A/23/90-91 and revenue case No.228A-23/91-92 was commenced and without giving opportunity of hearing to the plaintiff, the land was directed to be returned to defendant No.1 Rampati and defendant No.2 Bandha, for which the suit was filed to declare the order passed by the SDO, Ramanujganj as null and void and declaration be passed in favour of the plaintiff.

(3.) The defendant No.1 Rampati and defendant No.2 Bandha, filed their written statement and admitted that the subject land was purchased by Theki S/o Suna prior to 2.10.1959. It was further stated that since the permission was not obtained as required under Section 165 of the Code, 1959, therefore, the land ought to have been returned to the original holder. The defendant further contended that Pusa Kisan and Ghasiya Kisan are the the maternal grand father of defendant No.1 and maternal uncle of defendant No.2 thereby were related. Subsequently, the defendants No.1 & 2 proceeded ex-parte and no evidence was led on behalf of them. The state government, which was defendant No.3, contended that the order passed by the SDO (R), Ramanujganj is according to the law and since no appeal was filed, therefore, the said order has attained its finality and no cause of action arose in favour of the plaintiffs.