SUSHILA TIWARI Vs. CHANDRA PRAKASH SHARMA

JUDGEMENT

(1.) This appeal has been preferred by the Plaintiff under Sec. 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dtd. 27/8/2016 passed in Civil Suit No.10-A/2013, whereby the learned trial Court has dismissed the suit. The parties to this appeal shall be referred hereinafter as per their description before the Court below.

(2.) The facts which are essential to be stated for adjudication of this appeal are that the Plaintiff-Smt. Sushila Tiwari instituted a suit claiming declaration of title with regard to the land in question bearing Khasra No.121/7 admeasuring 0.041 hectare described in plaint Schedule "A" and also for declaration with regard to Khasra No.121/4 admeasuring 0.020 hectare described as "d" "[k" "x" "? ?˜" "p" in plaint Schedule "B" to the effect that defendant 1-Chandraprakash Sharma has not acquired any interest on it based upon the registered deed of sale dtd. 28/12/1988 purported to have been executed in his favour by one Uttam Upadhyay, with a further relief of specific performance of contract of it on the basis of compromise deed dtd. 17/3/2009 (wrongly mentioned in the plaint as 6/4/2009) which was entered with defendant No.2-Usmaan Ali and, alternatively claimed for its possession. According to the Plaintiff, she purchased the part of Khasra No.121/2 admeasuring 0.041 hectare situated at village Rajim as shown at the time of alienation by her vendor, namely, Puniya Bai, which is adjacent to her house towards Raipur road under the registered deed of sale dtd. 30/1/1976 and upon its mutation, it was recorded in revenue paper as Khasra No.121/7 area 0.041 hectare. It is pleaded further that her said vendor Puniya Bai has adopted the Muslim community and got married with one Ismile Ali and upon her demise on 1/12/2007 issueless, the house and plot held by her was inherited by one Usmaan Ali, defendant No.2, who was born from her husband's first wife. It is pleaded further that when she initiated the construction work towards northern side of her plaint Schedule "A" property, a proceeding was initiated by Usmaan Ali before the Tehsildar Rajim, which was registered as Revenue Case No.8-A/121/2008-09. The said proceeding was ended with a compromise on 17/3/2009 and on the said day, an oral agreement was made between them whereby said Usmaan Ali has agreed to alienate the same to her as shown in red colour in plaint Schedule "B" property for a consideration of Rs.50,000.00, while delivering the possession of it.

(3.) Further contention of the plaintiff is that when she initiated the construction work after obtaining the possession of the aforesaid suit lands (Schedule "A" and "B"), a proceeding was initiated by defendant No.1- Chandraprakash Sharma under Sec. 250 of the Chhattisgrah Land Revenue Code, 1959 (hereinafter referred to as 'the Code, 1959) for removal of her possession before the Court of Tehsildar, Rajim, which was registered as Revenue Case No.2-A/70/2010-11. The said proceeding was decided ex parte by the said authority vide order dtd. 6/2/2012 and the plaintiff was directed to handover the possession of the suit lands to said defendant-Chandraprakash Sharma. The said order of the Tehsildar was affirmed further by Sub-Divisional Officer, Gariyabandh vide its order dtd. 29/6/2012 in Revenue Appeal No.10-A/70-2011-12 and, the revision preferred thereagainst was dismissed by the Collector vide its order dtd. 29/11/2012 holding it to be barred by its jurisdiction and thereafter the Revision Petition has been preferred before the Court of Commissioner, Raipur.