1 SA No. 360 of 2014 2026:CGHC:1405 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 360 of 2014 Sushil Kumar S/o Charanlal Bena Aged About 36 Years R/o Dabadih, P.H. No. 40, R.I.C. Lavan, Tah. Baloda Bazar, Distt. Baloda Bazar- Bhatapara C.G., Chhattisgarh ... Appellant versus 1 - Vishram Sagar S/o Late Kartikram Aged About 36 Years R/o Dabadih, P.H. No. 40, R.I.C. Lavan, Tah. Baloda Bazar, Distt. Baloda Bazar-Bhatapara C.G., Chhattisgarh 2 - State Of Chhattisgarh Thru- Collector, Baloda Bazar C.G., District : Balodabazar-Bhathapara, Chhattisgarh ---- Respondents (Cause-title taken from Case Information System) For Appellants : Mr. Sameer Uraon, Advocate For Resp/State : Mr. Malay Jain, PL Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 09.01.2026 1. The present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant/plaintiff challenging the judgment and decree dated 18.07.2014 passed by the District Judge, Balodabazar, Chhattisgarh in Civil Appeal No. RAHUL JHA Digitally signed by RAHUL JHA Date: 2026.01.12 17:42:07 +0530 2 SA No. 360 of 2014 H13A/2014 (Sushil Kumar v. Vishram Sagar & another), arising out of the judgment and decree dated 28.01.2014 passed by the learned 2nd Civil Judge, Class-I, Balodabazar in Civil Suit No. 79-A/2013 (Sushil Kumar v. Vishram Sagar & another), whereby the appeal preferred by the plaintiff was dismissed. For the sake of convenience, the parties are referred to as per their status before the learned Trial Court. 2. The appeal was admitted by this Court vide order dated 08.12.2014 on the following substantial questions of law: “1. Whether the two Courts below were justified in holding that the plaintiff has not been able to establish his right over the suit property?. 2. Whether the finding of the two Courts below, so far as the right of the plaintiff over the said property, particularly in the light of Ex.P/6 is perverse or not?” 3. The plaintiff instituted the civil suit seeking permanent injunction and removal of alleged illegal construction by defendant No.1, pleading inter alia that he has been residing for a long time in an old residential house situated at Village Dabadih on abadi land bearing Khasra No. 577. Adjacent thereto lies agricultural land bearing Khasra No. 576/2. It was alleged that a portion of abadi land, left by the plaintiff for domestic use (nistar), was illegally encroached upon by defendant No.1, who started construction over an area measuring 2 × 36 = 72 sq. ft. in April, 2013. It was further pleaded that excavation carried out by defendant No.1 obstructed drainage of water from the plaintiff’s courtyard, leading to lodging of complaints before the police and the revenue authorities and 3 SA No. 360 of 2014 issuance of a stay order by the Naib Tehsildar. Defendant No.1, in his written statement, denied the plaint allegations and pleaded that the construction was carried out over his ancestral abadi land, where a house had existed for the last 45–50 years. It was contended that only reconstruction was undertaken and no encroachment was made. The stay order issued by the Naib Tehsildar was challenged as being without jurisdiction and passed ex parte. It was prayed that the suit be dismissed. Upon appreciation of the evidence, the learned Trial Court held that the plaintiff failed to establish either title or lawful possession over the suit land and also failed to prove any encroachment or unauthorized construction by defendant No.1. Consequently, the suit was dismissed vide judgment and decree dated 28.01.2014. The First Appeal preferred by the plaintiff was also dismissed by the learned District Judge on 18.07.2014, affirming the findings of the Trial Court. 4. Learned counsel for the appellant contended that both the Courts erred in law by insisting upon strict proof of title in respect of abadi land and ignored material evidence, particularly Ex.P/6 and the stay order passed by the Naib Tehsildar, thereby rendering the findings perverse. 5. Learned counsel for the respondent/defendant has opposed the submission of learned counsel for the plaintiff/appellant and supported the impugned judgment. 6. I have heard learned counsel for the parties and perused the record with utmost circumspection. 4 SA No. 360 of 2014 7. A careful examination of the judgment passed by the First Appellate Court reveals that the appellate Court has undertaken a thorough appreciation of the pleadings as well as the oral and documentary evidence. It has been clearly recorded that the plaintiff’s claim was not founded on title but was essentially based on an alleged nistar or easementary right over the disputed abadi land. In such a situation, the burden lay upon the plaintiff to establish continuous, uninterrupted and lawful use of the land for a considerable period, which he failed to prove by cogent evidence. 8. With regard to Ex.P/6, the spot map prepared by the Patwari, the First Appellate Court has rightly observed that the same was not proved in accordance with law, as the Patwari was not examined as a witness. The map itself records that the alleged encroachment was shown “as stated by the plaintiff”. There is no material to show that the map was prepared after lawful demarcation or correlation with revenue records. Consequently, Ex.P/6 does not carry any presumptive evidentiary value. 9. The plaintiff, in his own evidence, admitted that Khasra No. 576/2 was not recorded in his name and that no documentary evidence was produced in support of demarcation proceedings. Neither party placed an revenue record or document conclusively establishing ownership of the disputed land. Since the suit was instituted by the plaintiff, the burden to establish his right, possession or easementary interest rested upon him, which he failed to discharge, despite the well settled principal of law that the burden of proof is heavy upon the party who is claiming right/title 5 SA No. 360 of 2014 over the land in dispute. 10. The Trial Court as well as the First Appellate Court have concurrently held that defendant No.1 carried out construction over his pre-existing ancestral house and that no encroachment upon the plaintiff’s land was established. These findings are based on proper appreciation of evidence and do not suffer from perversity or misreading of the record. 11. It is well settled that the jurisdiction of this Court under Section 100 CPC is limited and interference is permissible only when findings recorded by the Courts of first instance and appeal are shown to be perverse, illegal or based on no evidence. The substantial questions framed essentially seek re-appreciation of evidence, which is impermissible in a Second Appeal. 12. In view of the foregoing discussion, the substantial questions of law framed at the time of admission are answered against the plaintiff/appellant. 13. Accordingly, the Second Appeal is dismissed. 14. A decree be drawn accordingly. Sd/- (Bibhu Datta Guru) Judge Gowri/ Rahul