CHAITI BAI Vs. LOKNATH KRISHNAPAD

JUDGEMENT

(1.) This is defendant's second appeal which was admitted for hearing on the following substantial question of law: -

(2.) The suit land was originally held by the plaintiff being his ancestral property. Under the proceeding under Section 176 of the Chhattisgarh Land Revenue Code, 1959 (for short, 'the Code'), the suit land was declared abandoned. Thereafter, it was auctioned on lease for three consecutive years in favour of defendant No.1 and by order dated 30- 3-1991, the Tahsildar, Keshkal under the provisions contained in Section 190 read with Section 110 of the Code conferred him the rights of Bhoomiswami and directed his name to be mutated which was duly mutated. Thereafter, the plaintiff on 4-3-1993 had filed suit for declaration that he is title and possession holder of the suit land and auction made in favour of defendant No.1 by the State be declared invalid which was dismissed by the trial Court, but the first appellate Court reversed that finding and allowed the appeal of the plaintiff and decreed the suit against which defendant No.1 / original appellant has preferred this second appeal under Section 100 of the CPC in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Shobhit Koshta, learned counsel appearing for the appellants / LRs of original defendant No.1, would submit that the first appellate Court went wrong in holding that the preconditions required for Section 176 of the Code are not satisfied and therefore it could not have been declared abandoned by the State Government under Section 176 of the Code, as the proceeding and order under Section 176 was not under challenge. He would further submit that the auction was made in favour of defendant No.1, but that has also not been challenged and therefore the finding recorded by the first appellate Court that the preconditions mentioned in Section 176 of the Code were not satisfied and therefore the plaintiff is entitled for decree, is contrary to facts and law available on record, as the order vesting the land and the order granting Bhoomiswami right dated 30- 3-1991 were never challenged and no declaration or cancellation of those orders were sought for by the plaintiff and as such, the judgment & decree of the first appellate Court deserves to be set aside.