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2026:CGHC:19866

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

SA No. 63 of 2020

1 - Kumudeshwar Singh (Dead) S/o Ram Krishan Singh, Aged About

85 Years, R/o Semra, Tahsil Navagarh, District Janjgir-Champa,

Chhattisgarh.

1.1 - (A) Ashwani Kumar Singh S/o Late Kumudeshwar Aged About

58 Years R/o Semra, Tahsil Navagarh, District Janjgir-Champa,

Chhattisgarh.

1.2 - (B) Sobha Singh D/o Late Kumudeshwar Aged About 61 Years

R/o Semra, Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh.,

1.3 - (C) Sachi Singh D/o Late Kumudeshwar Aged About 51 Years

R/o Semra, Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh.,

1.4 - Deleted (D) Laxmi Devi As Per Honble Court Order Dated 23-

01-2020

...Appellants

versus

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1 - Deleted (Manharan) As Per Honble Court Order Dated 23-01-

2020

2 - Deleted (Sukhsagar) As Per Honble Court Order Dated 23-01-

2020

3 - Kadam (Dead) S/o Shivpal Sahu, Aged About 75 Years, R/o

Semra, Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh.,

District : Janjgir-Champa, Chhattisgarh

3.1 - (A) Manaharan S/o Late Kadam Aged About 55 Years

(Annihilated), R/o Semra, Tahsil Navagarh, District Janjgir-Champa,

Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

3.2 - (B) Sukhsagar S/o Kadam Aged About 15 Years Natural

Guardian Valima Sukwara Bai W/o Kadam Sahu (Annihilated), R/o

Semra, Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh.,

District : Janjgir-Champa, Chhattisgarh

3.3 - (C) Dilharan S/o Late Kadam Aged About 57 Years R/o Semra,

Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh., District :

Janjgir-Champa, Chhattisgarh

3.4 - (D) Budhram S/o Late Kadam Aged About 54 Years R/o Semra,

Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh., District :

Janjgir-Champa, Chhattisgarh

3.5 - (E) Minabai D/o Late Kadam Aged About 56 Years R/o Semra,

Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh., District :

Janjgir-Champa, Chhattisgarh

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3.6 - (F) Pyari D/o Late Kadam Aged About 53 Years R/o Semra,

Tahsil Navagarh, District Janjgir-Champa, Chhattisgarh., District :

Janjgir-Champa, Chhattisgarh

3.7 - (G) Santoshi Aged About 17 Years (Minor) Natural Guardian

Valima Sukwara Bai W/o Kadam Sahu, R/o Semra, Tahsil Navagarh,

District Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa,

Chhattisgarh

4 - State Of Chhattisgarh Through Jila Adyaksh, Janjgir, District

Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa,

Chhattisgarh

... Respondent(s)

(Cause title taken from CIS)

For Appellants:Shri Amit Kumar, Advocate

For State :Shri Malay Jain, Panel Lawyer

Hon'ble Shri Bibhu Datta Guru , Judge

Judgment on Board

29.04.2026

1.By the present appeal under Section 100 of the Code of Civil

Procedure,the appellant/plaintiff challenges the impugned

judgment and decree dated 26.11.2019 passed by the learned

Third Additional District Judge, Janjgir, District Janjgir - Champa

(C.G.) in Civil Appeal No. 38-A/2018 (Kumudeshwar Singh

(died) through Legal Representative vs. Manharan & Others)

arising out of the judgment and decree dated 06.03.2018

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passed by the learned Civil Judge, Class-II, Navagarh, District

Janjgir-Champa (C.G.) in Civil Suit No. 16-A/11 (Kumudeshwar

Singh (died) through LR’s vs. Manharan & Others). For the

sake of convenience, the parties shall be referred to as per

their status before the learned Trial Court.

2.The civil suit has been instituted by the plaintiff against the

defendants seeking declaration of title, permanent injunction,

recovery of possession, and removal of encroachment in

respect of land situated at Village Semra, P.H. No. 8, R.I. Circle

and Tahsil Navagarh, District Janjgir-Champa, bearing Khasra

No. 38/1 (area 1.004 hectare), Khasra No. 38/28 (area 0.016

hectare), and Khasra No. 38/5 (area 0.008 hectare).

3.(a) The case of the plaintiff, in substance, is that Khasra No.

38/1 constitutes ancestral joint family property of the plaintiff

and his predecessors, and no portion thereof has ever been

legally transferred to Defendants No. 1, 2, or 3. It is alleged

that Khasra No. 38/5 and Khasra No. 38/28 have been illegally

and fraudulently recorded in the names of Defendant No. 2

(Sukhsagar) and Defendant No. 1 (Manharan), respectively,

without any valid transfer or mutation order.

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(b) The plaintiff submits that he became aware of such illegal

entries on 29.06.2011 upon obtaining certified copies of the

revenue records. Thereafter, an application was made for

obtaining mutation details, and the Tehsildar, Navagarh, by

communication dated 13.05.2011, informed that no mutation

order was available in respect of Khasra No. 38/5, and no

mutation record relating to Khasra No. 38/28 could be traced

in official records.

(c) It is further averred that upon inquiry, the defendants

failed to produce any document evidencing lawful acquisition

of title and instead started raising construction over the

disputed land. A legal notice was served through counsel

upon Defendant No. 3, which remained unresponded. The

plaintiff further states that the defendants initially encroached

upon land belonging to the Irrigation Department and

thereafter, by deceit, extended their possession over the suit

land.

(d) The plaintiff got the land demarcated through the

Tehsildar, and the demarcation proceedings revealed that the

defendants had encroached upon the suit land and were

raising constructions thereon. It is also stated that the suit

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property was jointly owned by the plaintiff’s brothers, namely

Babusingh and Nanak Singh (since deceased), and forms part

of a Hindu joint family estate.

4.(A) The defendants, in their written statement, admitted that

Khasra Nos. 38/28 and 38/5 are parts of Khasra No. 38/1 but

denied all other allegations. It is their case that Defendant No.

3 had purchased the said lands approximately 45 years ago

from the plaintiff and his family members, namely Babusingh

and Nanak Singh, at the rate of Rs. 100 per decimal, and since

then has been in continuous, peaceful possession, having

constructed residential structures thereon.

(B) The defendants further contended that their names were

duly recorded in revenue records and subsequently mutated

in favour of Defendants No. 1 and 2 vide Mutation No.

19/2004-05, and that they have been residing in the

constructed houses as rightful owners. It is also pleaded by

the defendants that, in any case, they have perfected their

title by way of adverse possession, having been in open,

continuous, and uninterrupted possession of the land for

more than 40–45 years to the knowledge of the plaintiff, who

never raised any objection during this period.

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(C) The defendants denied having knowledge of the legal

notice on account of illiteracy and further contended that the

demarcation report does not establish any encroachment by

them over the plaintiff’s land. They also asserted that the

plaintiff had previously sold portions of the land to various

persons, as reflected in the demarcation report.

5.In support of his case, the plaintiff examined himself and one

witness and produced documentary evidence including the

original demarcation report (Ex. P/1), certified copy of B-1

records (Ex.P/2), Khasra Panchshala (Ex. P/3), and copy of

application for records (Ex. P/4).

Despite being granted several opportunities, the

defendants failed to lead any oral or documentary evidence in

support of their pleadings, and accordingly, their right to

adduce evidence was closed by the Court.

6.After appreciating the evidence available on record and after

framing the issues, the learned trial Court by judgment and

decree dated 06.03.2018 dismissed the suit of the plaintiff

holding that the plaintiff failed to prove that the suit land was

his ancestral property, as no cogent documentary evidence of

title was produced, and thus he was not entitled to declaration

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or recovery of possession. The defendants also failed to prove

their plea of purchase, as no valid sale document was filed.

Further, the plea of adverse possession was rejected due to

lack of evidence of continuous and hostile possession. There

against, the Civil Appeal preferred by the plaintiff , which has

been dismissed vide impugned judgment and decree by the

learned First Appellate Court. The present appeal preferred by

the plaintiff.

7.Learned counsel for the appellants submits that the Trial

Court as well as the First Appellate Court have committed

grave errors of law in dismissing the suit despite the

defendants having admitted that the suit land is ancestral

property of the appellants, thereby entitling them to a decree

of declaration and possession. It is further contended that

both the Courts erred in placing the burden of proof upon the

appellants, whereas the same lay upon the respondents/

defendants to establish their plea of alleged purchase said to

have been made 45 years ago from Babu Singh and Nanak

Singh, which they failed to prove by any cogent evidence. It is

also argued that the First Appellate Court committed a further

error of law in rejecting the appellants’ application under

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Order 41 Rule 27 CPC and refusing to take on record certified

copies of revenue records (Record of Rights) reflecting the

names of the appellants’ ancestors, which were necessary for

proper adjudication.

8.I have heard learned counsel for the appellant, perused the

material available on record.

9.It is evident that both the Courts have concurrently held that

the appellant/plaintiff failed to prove their title over the suit

property. Though the plaintiffs asserted that the land in

question was their ancestral joint family property, they did not

produce any cogent documentary evidence, such as revenue

records or title documents, to substantiate such claim. Mere

oral assertions and supporting testimony were rightly held to

be insufficient to grant a decree of declaration and

possession.

10.So far as the contention regarding admission by the

defendants is concerned, both the Courts have correctly

appreciated that the alleged admission was only to the extent

that the suit land formed part of a larger survey number and

not an unequivocal admission of the plaintiffs’ title. Hence, no

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decree could have been passed solely on such partial

admission.

11.With regard to the burden of proof, this Court finds no

illegality in the approach adopted by both the Courts. In a suit

for declaration of title and possession, the primary burden lies

upon the plaintiffs to establish their title independently. The

failure of the defendants to prove their plea of purchase or

adverse possession does not ipso facto entitle the plaintiffs to

a decree, unless they succeed on the strength of their own

case.

12.The defendants’ plea of purchase was rightly disbelieved in

absence of any registered sale deed or valid document, and

similarly, the plea of adverse possession was rejected for want

of evidence showing continuous, open, and hostile possession

for the statutory period. However, such findings do not

improve the case of the plaintiffs.

13.As regards the rejection of the application under Order 41

Rule 27 CPC by the First Appellate Court, this Court finds that

no sufficient cause was shown by the appellants for non-

production of the said documents at the trial stage. The

additional evidence sought to be produced could have been

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filed earlier with due diligence, and therefore, the First

Appellate Court committed no error in rejecting the

application.

14.As far as the submission of learned counsel for the

appellant/plaintiff with regard to production of certain

documents in this appeal is concerned, such permission

cannot be granted as a matter of course, nor can additional

evidence be introduced at the whim or convenience of a

litigating party. In fact, the general principle is that the

appellate Court should not travel outside the record of the

trial Court as well as the First Appellate Court and cannot take

any evidence in an appeal under Section 96 of the CPC. It is

noteworthy to mention here that once trial had concluded and

the decree was under challenged in an appeal, the appellants

cannot be permitted to fill the gaps in their case by seeking to

adduce further material to fortify the claim that was

fundamentally flawed. (See : Gobind Singh and Ors. v Union

of India and Ors. (Civil Appeal Nos.5168-5169 of 2011

decided on 9-3-2026).

15.The findings recorded by both the Courts are based on proper

appreciation of oral and documentary evidence and are

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neither perverse nor contrary to law. No substantial question

of law arises for consideration in the present Second Appeal.

No perversity, illegality or misapplication of law has been

demonstrated by the appellant so as to warrant interference

in second appeal.

16.It is well settled that in a second appeal under Section 100

CPC, interference is permissible only when a substantial

question of law arises. In the present case, the findings

recorded by the Trial Court as well as the First Appellate Court

are based on proper appreciation of evidence, are neither

perverse nor contrary to law, and do not give rise to any

substantial question of law.

17.Even otherwise, the scope of interference in a Second Appeal

under Section 100 of the Code of Civil Procedure is extremely

limited. Interference is permissible only when the appeal

involves a substantial question of law. Concurrent findings of

fact recorded by both the Courts cannot be interfered with

unless such findings are shown to be perverse, based on no

evidence, or contrary to settled principles of law.

18.In the present case, both the Trial Court and the First

Appellate Court have concurrently recorded findings, on the

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basis of evidence available on record, that the appellant failed

to establish their case by placing cogent and sufficient

material. The appellant has failed to demonstrate any

perversity, illegality, or misapplication of law in the findings so

recorded.

19.The questions sought to be raised in the present Second

Appeal essentially relate to re-appreciation of evidence and

challenge to concurrent findings of fact. Such questions do

not give rise to any substantial question of law within the

meaning of Section 100 of the Code of Civil Procedure.

20.It is well established that when there is a concurrent finding of

fact, unless it is found to be perverse, the Court should not

ordinarily interfere with the said finding.

21. In the matter of State of Rajasthan and others Vs. Shiv Dayal

and another, reported in (2019) 8 SCC 637, reiterating the

settled proposition, it has been held that when any concurrent

finding of fact is assailed in second appeal, the appellant is

entitled to point out that it is bad in law because it was

recorded de hors the pleadings or based on misreading of

material documentary evidence or it was recorded against any

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provision of law and lastly, the decision is one which no Judge

acting judicially could reasonably have reached.

22.Very recently the Supreme Court in the matter of Russi

Fisheries Pvt. Ltd. Vs. Bhavna Seth & Ors. in C.A. No. 109/2010

decided on 09.04.2026 has held thus at paras 31 to 35 :-

“31. It is settled in law that the findings of fact

howsoever erroneous, cannot be reopened and

disturbed in second appeal which is required to be

adjudicated only upon the substantial question of law,

if any, arising therein. Thus, the argument that the High

Court in second appeal ought to have examined the

evidence to ensure the correctness of the findings of the

First Appellate Court has no legs to stand and fails.

32. Long back in 1981, three judges of this Court in the

case of Bholaram Vs. Ammerchand (1981) 2 SCC 414

had ruled that even if findings of facts by courts below

are wrong or grossly inexcusable that by itself would

not entitle the High Court to interfere under Section 100

CPC in the absence of clear error of law. A similar view

was reiterated in Madhavan Nair vs. Bhaskar Pillai

(Dead) by Lrs. (2005) 10 SCC 553, wherein it has been

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laid down that even if the First Appellate Court commits

an error in recording a finding of fact, that itself will not

be a ground for the High Court to upset the same.

33. In Kashibai w/o Lachiram and Another vs.

Parwatibai w/o Lachiram and others (1995) 6 SCC 213,

a similar proposition of law was laid down by this Court

and it was held that the High Court cannot reappreciate

the evidence and interfere with the findings of facts

unless a substantial question of law or a question of

law duly formulated is to be decided. The second

appeal does not lie on the ground of erroneous findings

of facts based on appreciation of the relevant evidence.

34. Similar is the situation in the case at hand. The High

Court has not found any substantial question of law or

a question of law worth consideration in the second

appeal and, therefore, there was no occasion for it to

have reappreciated the evidence so as to come to a

different conclusion.

35. Again, in Kulwant Kaur & Ors. Vs. Gurdial Singh

Mann (dead) by Lrs & Ors. AIR (2001) SC 1273, it was

emphasized that the fact remains that in a second

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appeal, a finding of fact, even if erroneous, will not be

disturbed unless it is found that it stands vitiated for

want of perversity. No such case for interference has

been made out in the present case.”

23.Be that as it may, the argument advanced by learned counsel

for the appellant and the proposed question of law cannot be

regarded as satisfying the test of being ‘substantial question

of law’ within the meaning of Section 100 of CPC. These

questions, in my view, are essentially question of facts. The

appellants failed to raise any substantial question of law

which is required under Section 100 of the CPC in. In any

event, the Second Appeal did not involve any substantial

question of law as contemplated under Section 100 of the

CPC, no case is made out by the appellants herein. The

judgments impugned passed by the learned trial Court as well

as First Appellate Court are just and proper and there is no

illegality and infirmity at all.

13. Accordingly, the present appeal is liable to be and is hereby

dismissed at the motion stage itself. Sd/-

(Bibhu Datta Guru)

Judge

Shoaib/Gowri