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2026:CGHC:20351

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment Reserved on 21/04/2026

Judgment Delivered on01/05/2026

SA No. 510 of 2005

Ramesh S/o. Nandlal, Aged About 30 Years R/o. Chandeni (Dehandih), Thana

Sahaspur- Lohara, Tahsil Kawardha, District Kabirdham Chhattisgarh,

District : Kawardha (Kabirdham), Chhattisgarh

.Appellant(s)

Versus

1 - Smt.Radhabai (Died) Through Legal Heirs-

1.1 - (A) Janrail Singh S/o Ghanshyam, Aged About 45 Years R/o Village

Udiya, Thana Sahaspur Lohara, District Kabirdham Chhattisgarh.

1.2 - (B) Mansingh, S/o Ghanshyam Aged About 43 Years R/o Village Udiya,

Thana Sahaspur Lohara, District Kabirdham Chhattisgarh.

1.3 - (C) Virendra S/o Ghanshyam Aged About 33 Years R/o Village Udiya,

Thana Sahaspur Lohara, District Kabirdham Chhattisgarh.

1.4 - (D) Narayan S/o Ghanshyam Aged About 28 Years R/o Village Udiya,

Thana Sahaspur Lohara, District Kabirdham Chhattisgarh.

2 - Janrel Singh, S/o Ghanshyam, Aged About 30 Years R/o Odia Thana,

Sahaspur Lohara, Tahsil Kawardha, District Kabirdham Chhattisgarh.

3 - Virendra Kumar, S/o Ghanshyam Singh Aged About 26 Years R/o Odia

Thana, Sahaspur Lohara, Tahsil Kawardha, District Kabirdham Chhattisgarh.

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4 - Narayan, S/o Ghanshyam Singh, Aged About 19 Years R/o Odia Thana,

Sahaspur Lohara, Tahsil Kawardha, District Kabirdham Chhattisgarh.

5 - State Of Chhattisgarh Through Collector District Kabirdham Chhattisgarh,

District : Kawardha (Kabirdham), Chhattisgarh

Respondent(s)

(Cause-title taken from Case Information System)

For Appellant(s) :Mr. Ajit Singh, Advocate

For Resp No. 1 to 4:Mr. H.B. Agrawal, Senior Advocate along with Ms.

A. Sandhya Rao, Advocate

For Resp. No.5:Mr. Anand Gupta, Dy. GA

Hon'ble Shri Bibhu Datta Guru , J

C A V Judgment

1.By the present appeal under Section 100 of the CPC, the

appellant/defendant has assailed the judgment and decree dated

25/10/2005 passed by the learned District Judge, Kabirdham (C.G.) in

Civil Appeal No. 8-A/2005 (Smt. Radhabai & Others v. Ramesh &

Another), whereby the first appellate Court allowed the appeal preferred

by the plaintiffs/respondents and reversed the judgment and decree dated

24/03/2005 passed by the II Civil Judge, Class-I, Kawardha in Civil Suit

No. 94-A/2003 {Ghanshyam (since deceased) through LRs Smt.

Radhabai & Others v. Ramesh & Another}, thereby setting aside the

dismissal of the suit filed by the plaintiffs/respondents.

2.For the sake of convenience, the parties would be referred as per their

status before the learned trial Court.

3.The instant Second appeal was admitted on 07/03/2006 for hearing on

the following substantial question of law?

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“Whether the Lower Appellate Court failed to evaluate the

material evidence while reversing the judgment and decree

passed by the trial Court?”

4.(a)The facts of the case, in brief, are that the original plaintiff

Ghanshyam instituted a civil suit against the defendants in respect of the

disputed land bearing Khasra No. 230, admeasuring 2.00 acres, situated

at Village Lohara, Tahsil Kawardha, District Kabirdham. The suit was

filed seeking recovery of possession of the suit land, permanent

injunction restraining the defendants from interfering with the plaintiffs’

possession, declaration that the sale deed dated 01/05/1973 is valid and

binding upon defendant No. 1, and further declaration that the orders

dated 22/10/2001, 23/10/2001 passed in Revenue Case No. A/70/2001

and order dated 31/05/2002 passed in Case No. 254/2001 are not binding

upon the plaintiffs.

(b)It is an admitted position between the parties that the suit land

bearing Khasra No. 230, admeasuring 2.00 acres, is recorded in the

revenue records in the names of the plaintiffs. It is also not in dispute

that defendant No. 1 is in possession of the said land. Earlier, a dispute

arose between the plaintiffs and defendant No. 1, which led to

proceedings under Sections 145 and 146 of the Code of Criminal

Procedure, wherein, by order dated 31/05/2002 passed in Case No.

254/2001, possession of defendant No. 1 over the suit land was

recognized. It is further pleaded that deceased Ghanshyam (original

plaintiff) had also filed an application under Section 250 of the

Chhattisgarh Land Revenue Code before the Nayab Tahsildar, Lohara.

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(c) According to the plaintiffs, the suit land was originally purchased by

deceased Ghanshyam vide Ex.P/1 by way of a registered sale deed dated

01/05/1973 from Nandram and others for a consideration of ₹1,000/-.

After purchase, the name of the deceased Ghanshyam was duly recorded

in the revenue records. Upon his death, the names of the plaintiffs, being

his legal heirs, were mutated in the revenue records. It is further pleaded

that the suit land was being cultivated through sharecropping (Adhiya)

and defendant No. 1 was working as an Adhiyadar under the deceased.

However, taking undue advantage of the situation, defendant No. 1

started asserting his own rights over the suit land and refused to hand

over possession to the plaintiffs. Disputes arose between the parties,

culminating in proceedings under Sections 145 and 146 CrPC, wherein

possession was declared in favour of defendant No. 1. Aggrieved

thereby, the plaintiffs instituted the present suit.

(d) Defendant No. 1 filed a written statement denying the plaint

averments and also preferred a counter-claim claiming ownership over

the suit land on the basis of adverse possession. It was contended that the

land was not sold but was mortgaged by Nandlal Yadav for a sum of

₹1,000/-, with possession delivered to defendant No. 1, and that the

plaintiffs, by playing fraud, got the sale deed executed instead of a

mortgage deed and managed to get their names recorded in the revenue

records. It was further pleaded that defendant No. 1 has been in

continuous, peaceful possession of the suit land for the last 20–25 years

to the knowledge of the plaintiffs and has thus perfected his title by

adverse possession. The defendant denied any forcible dispossession or

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interference. He also stated that the order passed by the revenue

authorities has attained finality because the plaintiff has not challenged

the same before the appropriate authority and hence the suit itself is not

maintainable.

(e) The plaintiffs filed a reply to the counter-claim denying the

allegations and contended that, in absence of any objection at the time of

mutation of the name of deceased Ghanshyam in the revenue records,

the counter-claim is barred by limitation and is liable to be rejected. It

was further pleaded that the original plaintiff, Late Ghanshyam, had

acquired title over the suit land by virtue of a registered sale deed dated

01/05/1973 executed by Nandram and others for a consideration of Rs.

1,000/-, which is binding upon defendant No. 1. In this regard, an

application under Order VI Rule 17 of the Code of Civil Procedure was

also filed seeking amendment of the plaint to incorporate the said facts

along with consequential pleadings relating to court.

(f) Defendant No. 2 remained absent despite service of notice and was

proceeded ex parte. No written statement was filed on his behalf.

5.On the basis of pleadings and evidence, the Trial Court dismissed the suit

holding that the plaintiffs failed to prove due execution and validity of

the sale deed dated 01/05/1973, as neither any attesting witness nor any

executant of the document was examined in accordance with law,

particularly in view of denial of execution by the vendor himself. The

Trial Court further held that the evidence on record established that the

transaction in question was not a sale but a mortgage (rehan), as

consistently deposed by the defendant and the executant of the

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document. It was also found that the plaintiffs failed to prove their

possession over the suit land, whereas the defendant No. 1 was in settled

possession for a considerable period. The Court further held that

defendant No. 1 successfully established his claim of adverse possession.

Consequently, it was held that the plaintiffs were not entitled to

declaration of title, recovery of possession, or permanent injunction. The

counter-claim preferred by defendant No. 1 was accordingly allowed,

declaring him to have acquired title over the suit property by adverse

possession, and the suit of the plaintiffs was dismissed with costs.

6.Aggrieved by the said judgment and decree, the plaintiff preferred a first

appeal before the Appellate Court, which allowed the appeal holding that

the Trial Court had erred in disbelieving the registered sale deed dated

01/05/1973 (Ex.P-1), which was a duly executed and registered

document clearly evidencing transfer of the suit property in favour of the

plaintiffs’ predecessor, Ghanshyam. The Appellate Court found that the

executant of the document, namely Nandram, had himself admitted

execution of the sale deed, and his subsequent plea that the transaction

was a mortgage was inconsistent and unreliable. It was further held that

the contents of a registered document cannot be contradicted by oral

evidence in absence of any cogent proof, and the document, being more

than 30 years old and produced from proper custody, carried a

presumption of due execution. The Appellate Court also held that the

defendant had no locus to challenge the sale deed, not being a party

thereto. On appreciation of evidence, it was concluded that the plaintiffs

had validly acquired title and possession over the suit land, and that the

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defendant had failed to establish continuous and adverse possession so

as to perfect title by adverse possession. Consequently, the judgment and

decree of the Trial Court were set aside, and the suit of the plaintiffs was

decreed by granting recovery of possession and permanent injunction in

their favour. Thus, this appeal by the defendant.

7.(i)Learned counsel for the appellant/defendant submits that the

impugned judgment and decree passed by the First Appellate Court are

unsustainable in law, as they reverse the well-reasoned findings of the

Trial Court without proper appreciation of evidence and settled legal

principles. It is contended that the Appellate Court erred in treating the

document dated 01/05/1973 as a sale deed, ignoring the surrounding

circumstances which clearly indicate that the transaction was, in

substance, a mortgage. The intention of the parties, being determinative,

has not been properly examined, and the provisions of Sections 54 and

58 of the Transfer of Property Act have been misapplied by relying

solely on the recitals of the document rather than its true nature. It is

further submitted that the Appellate Court failed to consider the

appellant’s long, continuous, and settled possession of the suit land, as

reflected in revenue proceedings, and erred in directing dispossession

without due process. The evidentiary value of such proceedings and

material documents has not been properly appreciated.

(ii)It is also urged that the findings of the First Appellate Court are

perverse, having been recorded without proper evaluation of oral and

documentary evidence on each and every points and by ignoring

material contradictions and admissions. The plea of limitation and

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maintainability of the suit has also not been adequately addressed. The

reversal of the Trial Court’s judgment is thus based on misreading and

non-consideration of material evidence and incorrect application of law.

Accordingly, it is prayed that the substantial questions of law be

answered in favour of the appellant/defendant and the impugned

judgment be set aside.

(iii)Learned counsel for the appellant further submits that the

plaintiff’s claim is based on an alleged sale deed dated 01.05.1973;

however, the record, particularly the Tehsildar’s order dated 16.07.1996,

establishes that the plaintiff was never in possession of the suit land. The

suit, instituted in 2002, is hopelessly barred by limitation, a vital issue

overlooked by the Appellate Court. The Trial Court rightly held that the

transaction was in the nature of a mortgage and that the defendants have

remained in continuous, open, and uninterrupted possession since 1973.

(iv)It is further submitted that the long delay of nearly 37 years,

coupled with consistent revenue records from 1994 to 2002, reinforces

the defendants’ plea of limitation and settled possession. The First

Appellate Court, however, reversed the Trial Court’s judgment without

proper appreciation of evidence and recorded perverse findings.

(v)It is also contended that mere execution of a sale deed does not

confer valid title unless the essential requirements under Section 54 of

the TP Act namely intention to transfer ownership and delivery of

possession are satisfied. In the present case, absence of possession and

surrounding circumstances negate an absolute sale. The Appellate Court

has further failed to correctly apply Sections 54 and 58 of the Act and

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the principles of adverse possession, despite long and hostile possession

of the appellant.

(vi)Learned counsel for the appellant would further submit that the

impugned judgment and decree by which the learned First Appellate

Court has reversed the well reasoned judgment and decree passed by the

learned Trial Court is not a reasoned judgment. According to him, at the

most the learned Appellate court ought to have remanded the matter to

the Trial Court for fresh adjudication. He would submit that the

impugned judgment and decree has been passed by the learned First

Appellate Court without appreciating the each and every issue involved

in the case that too without considering the provisions of the Section

58(c) of the TP Act, which categorically provides that no transactions

shall be deemed to be a mortgage unless the condition is embodied in the

document which effect or purports to affect the sale.

(vii)It is submitted that the learned First Appellate Court has failed to

deal with each and every material aspect of the matter and has not

undertaken a comprehensive reappreciation of the oral and documentary

evidence on record. Without addressing the findings of the Trial Court

on crucial issues, including the nature of the transaction, possession,

limitation, and evidentiary value of revenue records, the Appellate Court

has mechanically reversed the well-reasoned and cogent judgment of the

Trial Court. Such reversal, without proper analysis and independent

reasoning, renders the impugned judgment unsustainable in law. The

direction of dispossession is thus unsustainable. It is, therefore, prayed

that the impugned judgment be set aside and that of the Trial Court be

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restored. To support his contention, reliance has been place on the

decision renderred by the Supreme Court in the matters of Shakir

Hussain v Administrator, Nagar Palika, Mandsaur, (1998) 9 SCC 613,

Santosh Hazari v. Purushottam Tiwai (Dead) By Lrs. (2001) 3 SCC

179, Janak Dulari Devi and Another v. Kapil Deo Rai and Another,

(2011) 6 SCC 555, Vinod Kumar v. Gangadhar, 2015 (1) SCC 391, C.

Venkata Swamy v. H.N. Shivanna (Dead) by Legal Representative and

Another, (2018) 1 SCC 604, Ravinder Kaur Grewal and Others v.

Manjit Kaur and Others, (2019) 8 SCC 729 and Lucknow Nagar

Nigam & Others v. Kohli Brothers Colour Lab Private Limited &

Others, (2025) 6 SCC 628.

8.(A)Learned counsel for the respondents/plaintiffs, ex adverso,

submits that the impugned judgment and decree passed by the learned

First Appellate Court are well-reasoned, based on proper appreciation of

evidence, and do not suffer from any illegality or perversity warranting

interference under Section 100 of the Code of Civil Procedure. It is

contended that the suit was instituted for declaration and permanent

injunction challenging the order dated 31/05/2002 passed by the Sub-

Divisional Officer under Section 145 CrPC, and the same was filed well

within limitation as prescribed under Article 100 of the Limitation Act. It

is further submitted that the plaintiffs have successfully established their

title over the suit property on the basis of a duly executed and registered

sale deed dated 01/05/1973, which has neither been challenged by the

executants nor set aside in accordance with law. The executant himself,

examined as a witness, has admitted execution of the said document, and

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therefore, the plea of the defendant that the transaction was a mortgage is

wholly untenable and has rightly been rejected by the First Appellate

Court, particularly in absence of any stipulation as required under

Section 58(c) of the TP Act.

(B)It is further contended that the First Appellate Court has rightly

held that the nature and contents of a registered document cannot be

contradicted by oral evidence in view of Section 92 of the Evidence Act,

and therefore, the defence sought to be raised by the defendant was

legally impermissible. Learned counsel submits that the defendant, not

being a party to the sale deed, had no locus to challenge its validity, and

no independent proceedings were ever initiated to declare the document

void or voidable. It is also submitted that the plea of adverse possession

raised by the defendant has been rightly rejected, as there is no cogent

evidence to establish continuous, open, and hostile possession for the

statutory period to the knowledge of the true owner. Mere possession,

particularly when originating as permissive possession in the capacity of

an Adhiyara, cannot ripen into adverse possession in absence of clear

and unequivocal hostile assertion of title.

(C)It is further submitted that reliance placed on proceedings under

Section 145 CrPC is misconceived, as such proceedings are limited to

determination of possession for maintaining law and order and do not

confer or extinguish title. The learned First Appellate Court, being the

final Court of fact, has re-appreciated the entire evidence on record and

has assigned cogent and legally sustainable reasons while reversing the

judgment of the Trial Court, which had failed to properly appreciate the

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documentary evidence, particularly the registered sale deed. No

perversity, misreading of evidence, or non-consideration of material

documents has been demonstrated by the appellant so as to warrant

interference in second appeal. The issues raised are purely factual in

nature and amount to seeking re-appreciation of evidence, which is

impermissible in exercise of jurisdiction under Section 100 CPC. Hence,

it is submitted that the present appeal, being devoid of merit, deserves to

be dismissed.

9.I have heard learned counsel for the appellant at length and have

carefully perused the pleadings, oral and documentary evidence as well

as the judgments and decrees passed by the Courts.

10.Since the present appeal arises under Section 100 of the Code of Civil

Procedure, the scope of interference by this Court is confined only to

substantial questions of law, and it is well settled that concurrent

findings of fact or findings based on proper appreciation of evidence

cannot be interfered with unless the same are shown to be perverse or

based on misapplication of law.

11.The principal controversy in the present case revolves around the nature,

validity and evidentiary value of the document dated 01/05/1973 (Ex.P-

1), and whether the learned First Appellate Court was justified in

reversing the finding of the Trial Court by holding the same to be a valid

sale deed. Upon careful scrutiny, it is evident that the said document is a

registered instrument, containing clear recitals of sale, consideration,

description of property and transfer of rights in favour of the original

plaintiff Ghanshyam. The executant of the document, namely Nandram,

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though examined on behalf of the defendant, has admitted execution of

the document. His subsequent attempt to characterize the transaction as a

mortgage is not only inconsistent but also unsupported by the contents of

the document itself.

12.In this regard, the learned First Appellate Court has rightly applied the

settled principles of law that where the terms of a written and registered

document are clear and unambiguous, the same cannot be contradicted

or varied by oral evidence, in view of Section 92 of the Evidence Act.

Further, in absence of any condition as contemplated under Section 58(c)

of the TP Act, the transaction cannot be treated as a mortgage by

conditional sale. The Trial Court, in discarding the document on the

ground of non-examination of attesting witnesses, has overlooked the

material aspect that the executant himself admitted its execution, thereby

satisfying the requirement of proof. Thus, the finding of the First

Appellate Court that Ex.P-1 is a valid sale deed is based on correct

appreciation of law and evidence and does not call for interference.

13.As regards the contention relating to misinterpretation of Sections 54 and

58 of the TP Act, this Court finds that the learned First Appellate Court

has correctly interpreted the said provisions. Section 54 clearly provides

that a sale of immovable property of value exceeding ₹100 can be

effected only by a registered instrument, and once such a document is

executed and registered, it operates as a transfer of ownership. On the

other hand, for a transaction to qualify as a mortgage by conditional sale

under Section 58(c), the essential condition must be embodied in the

document itself. In the present case, no such condition exists in Ex.P-1.

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Therefore, the conclusion of the First Appellate Court that the document

is an out-and-out sale and not a mortgage is legally sound.

14.The next issue pertains to the plea of adverse possession raised by the

appellant/defendant. It is trite law that adverse possession must be

established by cogent and convincing evidence showing continuous,

open, hostile and uninterrupted possession to the knowledge of the true

owner for the statutory period. In the present case, the evidence on

record does not establish the exact period from which the possession of

the defendant became hostile. On the contrary, the case of the plaintiffs

that the defendant was inducted as an Adhiyara (sharecropper)

probabilizes the initial possession to be permissive in nature. Permissive

possession, by its very nature, cannot mature into adverse possession

unless there is a clear and unequivocal assertion of hostile title, which

has not been proved in the present case.

15.In the case at hand, the plaintiff witness namely; Radha Bai (PW-1), who

is the wife of the original plaintiff, categorically stated in her affidavit

under Order 18 Rule 4 of the CPC that her husband purchased the land

in question after selling her ornaments. The said land was never put on

mortgage and as such the contention of the defendant Ramesh that the

land was put on mortgage is not true. This witness further stated that

since the original plaintiff used to go outside for business purpose, the

land in question was given to the defendant on Adhiya under their

supervision. However, the defendant by taking undue advantage of the

same used to create hurdle in respect of the ownership. Another

plaintiff witness namely; Dhur Singh (PW-2) also stated in his affidavit

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that the Adhiyara namely; Ramesh (defendant) used to quarrel with the

plaintiffs in respect of the land in question since last six years and was

not giving the fruits of the crop to the plaintiffs. From the evidence of

these witnesses, it manifest that the land in question was actually in

possession of the plaintiffs whereas they gave it to the defendant only on

Adhiya.

16.The reliance placed by the appellant on proceedings under Sections 145

and 146 of the Code of Criminal Procedure is also misconceived. It is

well settled that such proceedings are summary in nature and are

confined only to determination of actual possession for the purpose of

maintaining law and order. They do not confer any title nor do they

decide rights of the parties finally. Therefore, the finding recorded in

such proceedings recognizing possession of the defendant cannot be

construed as proof of lawful possession or title, much less adverse

possession.

17.The contention regarding improper appreciation of evidence by the First

Appellate Court also does not merit acceptance. Being the final Court of

fact, the First Appellate Court is duty bound to re-appreciate the entire

evidence on record, and in the present case, it has done so in a

comprehensive manner. The reasons assigned by the First Appellate

Court for reversing the judgment of the Trial Court are cogent, well-

founded and in consonance with settled legal principles. No material

evidence has been shown to have been ignored, nor any irrelevant

material has been taken into consideration so as to render the findings

perverse.

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18.So far as the plea of limitation is concerned, the suit was instituted

challenging the order dated 31/05/2002 passed by the Sub-Divisional

Officer and seeking consequential reliefs. The suit having been filed

within a few months thereof is clearly within limitation, as rightly held

by the First Appellate Court. No error, much less a substantial error of

law, has been demonstrated in this regard.

19.The contention of the learned counsel for the appellant that the learned

First Appellate Court failed to deal with each and every material aspect

of the case and mechanically reversed the well-reasoned judgment of the

Trial Court is also found to be devoid of merit. A careful perusal of the

impugned judgment shows that the First Appellate Court has

independently re-appreciated the entire oral and documentary evidence

on record and has recorded specific findings on the core issues, namely

the nature of the transaction embodied in Ex.P-1, the validity of the sale

deed, the plea of adverse possession, and the effect of revenue

proceedings. Merely because the Appellate Court has not discussed each

piece of evidence or every finding of the Trial Court in detail would not

render its judgment infirm, so long as the essential issues arising for

determination have been duly considered and decided with cogent

reasons. The judgment of the First Appellate Court reflects due

application of mind and cannot be said to be cryptic or perverse.

Therefore, the submission that the reversal is mechanical or without

proper analysis is liable to be rejected.

20.The decision of Shakir Hussain (supra) relied upon by defendant No. 1,

wherein the Supreme Court held that a plaintiff cannot succeed unless he

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establishes both his title to the suit property and possession thereof,

shall not be applicable to the facts of the present case, as from the entire

material available on record and the evidence adduced by the witnesses,

it is abundantly clear that the plaintiff is the owner of the disputed land

and had given the same to defendant No. 1 only for the purpose of

Adhiya.

21.Since the learned First Appellate Court, upon due appreciation of the

entire material available on record in its proper perspective, has rightly

reversed the findings of the learned Trial Court, it cannot be said that

such reversal has been made in a cryptic manner. Accordingly, the

reliance placed by defendant No. 1 on the decision of the Supreme Court

in Santosh Hazari (Supra) is distinguishable from the facts of the

present case.

22.It is pertinent to mention here that the decision rendered by the Supreme

Court in Vinod Kumar (supra) is also not applicable to the facts of the

present case, as the learned First Appellate Court has decided the civil

appeal after duly considering all aspects of the matter in their proper

perspective. Hence, it cannot be said that any prejudice has been caused

to defendant No. 1, nor that any valuable right of his has been adversely

affected so as to deprive him of an opportunity of being heard in the civil

appeal in accordance with law.

23.Before parting, it is also apposite to observe that the First Appellate

Court, being the final Court of fact, has not only considered the

documentary evidence, particularly the registered sale deed (Ex.P-1), in

its proper perspective, but has also dealt with the oral evidence and

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surrounding circumstances in a comprehensive manner. The conclusions

arrived at are neither perverse nor contrary to law. The learned First

Appellate Court reversed the finding of the learned Trial Court by

evaluating and examining the evidence available on record. There is no

illegality or irregularity in the reversal judgment rendered by the First

Appellate Court. Thus, the question of law framed by this Court on

07/03/2006 is answered accordingly.

24.In view of the foregoing analysis and applying the well settled principles

of law to the facts of the present case, this Court is of the considered

opinion that the findings recorded by the learned First Appellate Court

are based on proper appreciation of evidence and correct application of

law. The substantial questions of law framed in the present appeal are

answered against the appellant/defendant No.1 and in favour of the

respondents/ plaintiffs. The substantial question of law is answered in

the negative, as no failure of consideration of material evidence by the

First Appellate Court is made out.

25.Consequently, the present second appeal, being devoid of merit, deserves

to be and is hereby dismissed. The judgment and decree dated

25/10/2005 passed by the learned First Appellate Court are affirmed.

There shall be no order as to costs.

26.Decree be drawn accordingly.

Sd/-

(Bibhu Datta Guru)

Judge

Rahul/Gowri