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2026:CGHC:587

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment reserved on 27-01-2026

Judgment delivered on 03-02-2026

SA No. 406 of 2005

1 - Lala Prasad (Died) Through Legal Heirs

1.1 - Smt. Chandrakali Mishra. (Died And Deleted) As Per Honble Court

Order Dated 05-09-2024.

1.2 - Sushil Kumar S/o Late Lala Prasad Aged About 54 Years R/o

Village Ramhepur, P.H. No. 30, Ric Kawardha, Tahsil Kawardha, District

Kabirdham, Chhattisgarh.

1.3 - Smt. Shashi Devi D/o Late Lala Prasad Aged About 50 Years R/o

Village Ramhepur, P.H. No. 30, Ric Kawardha, Tahsil Kawardha, District

Kabirdham, Chhattisgarh.

1.4 - Smt. Shakuntala Devi D/o Late Lala Prasad Aged About 47 Years

R/o Village Ramhepur, P.H. No. 30, Ric Kawardha, Tahsil Kawardha,

District Kabirdham, Chhattisgarh.

1.5 - Shatrughan Mishra S/o Late Lala Prasad Aged About 45 Years R/o

Village Ramhepur, P.H. No. 30, Ric Kawardha, Tahsil Kawardha, District

Kabirdham, Chhattisgarh.

1.6 - Smt. Durga Mishra D/o Late Lala Prasad Aged About 38 Years R/o

Village Ramhepur, P.H. No. 30, RIC Kawardha, Tahsil Kawardha,

District Kabirdham, Chhattisgarh.

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1.7 - Sudhir Mishra S/o Late Lala Prasad Aged About 33 Years R/o

Village Ramhepur, P.H. No. 30, Ric Kawardha, Tahsil Kawardha, District

Kabirdham, Chhattisgarh.

1.8 - Anirudh Mishra S/o Late Lala Prasad Aged About 30 Years R/o

Village Ramhepur, P.H. No. 30, RIC Kawardha, Tahsil Kawardha,

District Kabirdham, Chhattisgarh.

... Appellants

versus

1 - Safi Mohammed S/o Yusuf Mohammed Musalman, Aged About 55

Years R/o Maruti Ward No. 07, Kawardha, Tah. Kawardha, District

Kabirdham, Chhattisgarh.

2 - Smt. Khatoon Bi (Died)

3 - State of Chhattisgarh, Through Collector, Kawardha, District

Kabirdham, Chhattisgarh.

...Respondents

(Cause-title taken from Case Information System)

For Appellants :Mr. H.B. Agrawal, Senior Advocate with

Ms. A. Sandhya Rao, Advocate

For Respondent no.1 None for respondent No.1, despite service

of SPC pursuant to the order dated

15.12.2025

For Respondent/State :Mr. Malay Jain, Panel Lawyer

Hon'ble Shri Bibhu Datta Guru , J

C A V Judgment

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

appellant/plaintiff challenging the impugned judgment and decree

dated 16/08/2005 passed by the learned District Judge, Kabirdham,

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Kawardha, C.G. in Civil Appeal No.39-A/2004 (Shafi Mohammad

Vs. Lalaprasad & Ors) arising out of the judgment and decree

dated 11/05/2001 passed by the learned 2

nd

Civil Judge Class-I,

Kawardha, C.G. in Civil Suit No.13A/2001 [Lala Prasad Vs. Safi

Mohammad & Ors] whereby the learned Appellate Court allowed

the appeal filed by the defendant/respondent No.1 and reversed the

judgment and decree passed by the trial Court. For the sake of

convenience, the parties would be referred as per their status

before the learned trial Court.

2.The instant appeal was admitted by this Court on 23.11.2005 on

the following substantial question of law :

“1) Whether the finding of the lower Appellate Court

that the nature of possession of the plaintiff was

permissive possession and not hostile is legally correct

particularly, when the plaintiff was in possession of the

property since 1977 on the strength of agreement to

sale?"

ii) "Whether the first Appellate Court was justified in

decreeing the counterclaim of the defendant which was

filed after more than 12 years for delivery of possession

on the basis of agreement?"

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iii) "Whether the appeal preferred by the defendant

before the First Appellate Court was liable for

dismissal for not filing proper Court-fee?”

3.(a) The plaintiff preferred a suit for specific performance of the

contract or, in the alternative, for declaration, pleading inter alia

that on 20.08.1977, Yusuf, the father of defendant No. 1, entered

into an agreement to sell the suit land bearing Khasra No. 133/3,

area 0.70 decimal, for a consideration of Rs. 1,951/-. On the same

day, he received Rs. 1,000/- in cash as advance in the presence of

witnesses, and a receipt to that effect was executed before the

witnesses. Further, it was agreed in writing that the remaining

amount of Rs. 951/- would be paid at the time of execution and

registration of the sale deed. Possession of the suit land was

delivered to the plaintiff on the same day. The agreement was

initially written on plain paper affixed with a revenue stamp.

Thereafter, on the same day, a stamp paper worth Rs. 2/- was

purchased and the above facts were reiterated and reduced into

writing on stamp paper as well. A period of 15 days time was

granted to the father of defendant No. 1 for execution of the sale

deed. Even after the expiry of 15 days, he did not execute the sale

deed in favour of the plaintiff. Whenever requested, he kept

postponing the matter by saying that the land was already in the

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plaintiff’s possession and there was no urgency. The plaintiff has

been in peaceful and continuous possession of the suit land till

date.

(b) About six years prior to filing of the suit, the father of

defendant No. 1 required money for medical treatment, whereupon

he called the plaintiff, and the plaintiff paid him the balance

amount of Rs. 951/- for his treatment. At that time, the father of

defendant No. 1 assured that he would execute the sale deed after

recovery from illness; however, he died. The legal heirs of Yusuf,

namely defendant Shafi Mohammad and defendant No. 2, the

daughter of Yusuf, were fully aware of the said agreement, yet they

also failed to execute the sale deed in favour of the plaintiff despite

repeated requests. Since the date of the agreement dated

20.08.1977, the plaintiff has remained in continuous, peaceful

possession of the suit land, and on this basis has also acquired

ownership by adverse possession. Even after service of notice, the

defendants did not execute the sale deed in favour of the plaintiff.

Therefore, the plaintiff has filed the present suit for specific

performance of the contract or, in the alternative, for declaration of

title.

4.(A)In the said Civil Suit, the defendants submitted their written

statement and denied the plaint averments. The defendant also

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denied the execution of any agreement by Yusuf. Defendant

contends that no title was acquired on the basis of an agreement to

sell, and that the suit is barred by limitation. It is further contended

that no ownership can be acquired over the suit land on the basis

of adverse possession. Therefore, Defendant has prayed for

dismissal of the suit and for appropriate relief. In the alternative, if

the plaintiff is found to be in possession of the suit land, Defendant

No. 1 has prayed that possession thereof be restored to Defendant

No. 1.

(B)The defendant also raised the counter claim along with the

written statement by contending that if it is found that the land is

under the possession of the plaintiff, and the possession of the

plaintiff is based on permission; then, the defendant is entitled to

get back the possession of the land; and also contended that for the

counterclaim, the Court fee of ₹40/- is payable at the rate of ₹2/-

per acre, amounting to twenty times of the rent, and on this, a court

fee of ₹4/- is affixed. In the said counterclaim, the defendant

prayed for dismissal of the suit and to grant of decree of

possession in respect of the suit land in favour of the defendant.

5.By controverting the counter claim, the plaintiff submitted his

reply and stated that the dispute pertains to the ownership of the

disputed land, which is based on permission. The disputed land has

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been continuously in the possession of plaintiff from the date the

father of the defendant agreed to sell the land to the plaintiff I.e.

20-08-1977 till today. Consequently, in accordance with the

principles of rightful possession and the statements described in

the agreement, the plaintiff is the sole owner of the disputed land.

In this regard, the matter has been communicated to the

defendants from the beginning. As a result, the defendant is not

entitled to obtain possession. The suit concerning possession and

its duration is barred; therefore, the defendant cannot file a claim

or counterclaim to obtain the possession of the said land. It is also

not clear on what basis the counterclaim has been evaluated.

According to the plaintiff, the defendant has not affixed sufficient

court fee in support of his counterclaim.

6.The learned Trial Court, after framing the issues and upon due

consideration of the evidence adduced by both parties as well as

the material available on record, allowed the suit filed by the

plaintiff. The Trial Court held that, in light of the findings recorded

on the issues, the plaintiff’s claim stood proved. Since Defendant

No. 1 and Defendant No. 2 are the lawful heirs of Yusuf, they were

directed to execute a sale deed in favour of the plaintiff in respect

of the suit land bearing Khasra No. 133/3, admeasuring 0.70

decimal. It was further ordered that in the event Defendant Nos. 1

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and 2 failed to get the suit land registered in favour of the plaintiff

within a period of three months, the sale deed shall be executed

through the Court in favour of the plaintiff. Additionally, on the

basis of the plaintiff’s uninterrupted and peaceful possession over

the suit land for more than twelve years, the plaintiff was also

declared to be the owner of the suit land.

7.The trial Court while considering the Issue No. 8 i.e. “Whether the

defendants have properly valued their claim?, which pertains to

counter-claim, observed that the burden of prove lies upon the

defendants. However, in order to substantiate the same, the

defendants did not examine any witnesses. In the counter-claim,

Defendant No. 1 sought only restoration of possession of the suit

land. For the said relief, Defendant No. 1 had properly valued the

counter-claim and paid the court fee of Rs. 40/- Accordingly, Issue

No. 8 was answered in the affirmative.

8.Against the said judgment and decree, the defendant, Shafi

Mohammad, filed a Civil Appeal before the learned first appellate

court for setting aside the judgment and decree dated 11.5.2001

and for allowing the counter claim. The appellate court allowed the

appeal by allowing the counter claim of the defendant and by

dismissing the suit filed by the plaintiff. The plaintiff was directed

to deliver possession of the land measuring 0.70 acres, Khasra No.

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133/3, situated in the village Ramhepur, to the defendant within a

period of one month. Thus, this appeal by the appellant/plaintiff.

9.Learned counsel for the plaintiff/appellant submits that the learned

First Appellate Court has committed a manifest error of law in

reversing the well-reasoned judgment and decree of the Trial

Court. The plaintiff was put in possession of the suit land on

20.08.1977 pursuant to a written agreement to sell, upon payment

of part consideration, the balance having been subsequently paid,

and such possession was in part-performance of the contract and

not permissive in nature. The finding of the First Appellate Court

that the plaintiff’s possession was permissive is perverse, contrary

to the evidence on record and settled principles of law, as

possession delivered under an agreement to sell cannot be treated

as permissive. The plaintiff remained in open, peaceful and

continuous possession of the suit land for more than twelve years

to the knowledge of the defendants, who despite being fully aware

of the agreement, failed to execute the sale deed. The Trial Court

rightly decreed the suit for specific performance and, in the

alternative, declared the plaintiff’s title on the basis of long and

uninterrupted possession. The counter-claim filed by the defendant

seeking recovery of possession was barred by limitation, having

been raised after more than twelve years, and was wrongly

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entertained and decreed by the First Appellate Court. According to

the learned counsel, the learned First Appellate Court ought to

have dismissed the appeal preferred by the defendant under

Section 96 of the CPC on the ground of deficit Court fee, however,

the said aspect has not been considered. The impugned judgment,

therefore, suffers from substantial errors of law and deserves to be

set aside, restoring the decree passed by the Trial Court.

10.None for respondent No.1, despite service of SPC pursuant to the

order dated 15.12.2025.

11.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 below.

12.The present second appeal has been preferred under Section 100 of

the CPC, which circumscribes the jurisdiction of this Court only to

substantial questions of law. The First Appellate Court, being the

final Court of facts, has reversed the judgment of the Trial Court

after re-appreciating the entire evidence. Therefore, interference in

second appeal is permissible only if the findings recorded by the

First Appellate Court are shown to be perverse, contrary to law, or

based on misreading or non-consideration of material evidence.

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13.Section 149 of the CPC prescribes a discretionary power which

empowers the court to allow a party to make up the deficiency of

court fee payable on plaint, appeals, applications, review of

judgment, etc. This section also empowers the court to

retrospectively validate insufficiency of stamp duties, etc. It is also

a usual practice that the court provides an opportunity to the party

to pay court fee within a stipulated time on failure of which the

court dismisses the appeal. However, in the case at hand, a bare

perusal of the record, it is evident that no such opportunity was

afforded to the defendant by the learned First Appellate Court to

cure the defect, if any, in respect of deficiency of Court fee.

14.The Supreme Court in the matter of Manoharan v. Sivarajan and

Others, (2014) 4 SCC 163 held thus at para 7:-

7.Section 149 of the Civil Procedure Code

prescribes a discretionary power which empowers the

court to allow a party to make up the deficiency of

court fee payable on plaint, appeals, applications,

review of judgment, etc. This section also empowers

the court to retrospectively validate insufficiency of

stamp duties, etc. It is also a usual practice that the

court provides an opportunity to the party to pay

court fee within a stipulated time on failure of which

the court dismisses the appeal. In the present case, the

appellant filed an application for extension of time for

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remitting the balance court fee which was rejected by

the learned Sub-Judge. It is the claim of the appellant

that he was unable to pay the requisite amount of

court fee due to financial difficulties. It is the usual

practice of the court to use this discretion in favour of

the litigating parties unless there are manifest

grounds of mala fides. The court, while extending the

time for or exempting from the payment of court fee,

must ensure bona fides of such discretionary power.

Concealment of material fact while filing application

for extension of date for payment of court fee can be a

ground for dismissal. However, in the present case, no

opportunity was given by the learned Sub-Judge for

payment of court fee by the appellant which he was

unable to pay due to financial constraints. Hence, the

decision of the learned Sub-Judge is wrong and is

liable to be set aside and accordingly set aside.

15.In respect of deficiency in Court fee, the power of the Appellate

Court is coextensive with that of trial Court and the First Appellate

Court in the interest of justice can do all that which could be done

by Trial Court in suit proceeding. The Supreme Court in the matter

of Tajender Singh Bhambhir and Another v. Gurpreet Singh &

Others, (2014) 10 SCC 702 at para 11 as under:-

“11.The High Court was also in error in holding

that the deficiency in court fee in respect of the plaint

cannot be made good during the appellate stage. In

this regard, the High Court, overlooked the well-

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known legal position that an appeal is continuation of

the suit and the power of the appellate court is

coextensive with that of the trial court. It failed to

bear in mind that what could be done by the trial

court in the proceeding of the suit, can always be

done by the appellate court in the interest of justice.”

16.The Supreme Court observed in the aforesaid case that an appeal is

a continuation of the original proceeding, the appellate Courts

have co-extensive jurisdiction with that of trial Court in procedural

matters including rectification of Court fee deficiency. Hence,

applying the aforesaid principles to the facts of the present case,

this Court finds no substance in the contention of the appellant that

the appeal before the First Appellate Court was liable to be

dismissed on account of alleged deficiency of Court fee. Even

assuming that there was any such deficiency, the same was curable

in nature, and the learned First Appellate Court was well within its

jurisdiction to entertain the appeal and decide the same on merits.

Mere technical objections relating to Court fee, in the absence of

any prejudice caused to the opposite party, cannot be permitted to

defeat substantive justice, particularly when the appellate court has

adjudicated the rights of the parties after full consideration of the

evidence on record.

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17.Coming to the principal contention regarding the nature of

possession, the learned First Appellate Court, upon re-appreciation

of oral and documentary evidence, has recorded a categorical

finding that the alleged agreement to sell dated 20.08.1977 was not

proved in accordance with law and that the plaintiff failed to

establish continuous readiness and willingness to perform his part

of the contract. Once the agreement itself is disbelieved, the plea

of possession in part-performance under Section 53-A of the

Transfer of Property Act automatically falls to the ground.

18.The finding of the First Appellate Court that the plaintiff’s

possession, if any, was permissive in nature cannot be said to be

perverse or based on no evidence. It is well settled that possession

flowing from a permissive arrangement does not ripen into adverse

possession unless there is a clear, hostile assertion of title to the

knowledge of the true owner. The learned First Appellate Court

has rightly held that there was no cogent evidence on record to

demonstrate that the plaintiff had ever asserted hostile title against

the defendants within the statutory period.

19.The Trial Court’s alternative declaration of title in favour of the

plaintiff on the basis of long possession was rightly set aside by

the First Appellate Court, as the plea of adverse possession was

neither specifically pleaded nor proved by satisfying the essential

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ingredients of intention to possess, continuity, and hostility. A

person who enters into possession claiming under an agreement to

sell cannot, in the same breath, claim adverse possession unless

there is a clear repudiation of the permissive or contractual

character of possession, which is conspicuously absent in the

present case.

20.As regards the counter claim filed by the defendant for recovery of

possession, the First Appellate Court has correctly held that the

cause of action for seeking possession arose only after the

plaintiff’s claim of title was negatived. The counter claim, being in

the nature of a defence coupled with a claim for consequential

relief, was maintainable and not barred by limitation. The said

finding is based on settled legal principles and does not suffer from

any illegality.

21.The findings recorded by the First Appellate Court are reasoned,

based on proper appreciation of material on record, and do not

disclose any perversity, misreading of evidence, or violation of

settled principles of law. The appellant has failed to demonstrate

how any substantial question of law arises for consideration in the

present appeal.

22.In view of the foregoing discussion, this Court is of the considered

opinion that the present second appeal is devoid of merit and does

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not give rise to any substantial question of law as contemplated

under Section 100 of the CPC. The impugned judgment and decree

passed by the learned First Appellate Court do not warrant

interference.

23.Accordingly, the substantial questions of law framed in this

Second Appeal are answered against the appellant/plaintiff and in

favour of the defendant/respondent.

24.Accordingly, the second appeal stands dismissed with no order as

to costs. As far as, the objection regarding Court fee is concerned,

the deficiency of Court fee being a curable defect. This Court, in

exercise of power under Section 149 CPC, permits the defendant

to make good the deficit court fee of the first appeal before

execution of the Decree drawn by the First Appellate Court.

25.A decree be drawn accordingly.

Sd/-

(Bibhu Datta Guru)

Judge

Rahul/Gowri

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HEAD NOTE

An appeal is a continuation of the original proceeding, the

appellate Courts have co-extensive jurisdiction with that of trial

Court in procedural matters including rectification of Court fee

deficiency.