2025:CGHC:39673 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 93 of 2012 1 - (Deleted) Dharmpal (Died), Through Lrs. - As Per Hon'ble Court Order Dated 03-04-2025 And 08-05-2025. 1.1 - (A) Vipin Kumar S/o Late Dharampal Aged About 34 Years R/o Village Harra District Koriya Chhattisgarh 2 - (Deleted) Rambai (Died) As Per Hon'ble Court Order Dated 03-04- 2025 And 08-05-2025. ... Appellants versus 1 - (Deleted) Rambai (Died), Through Lrs. - As Per Hon'ble Court Order Dated 03-04-2025 And 08-05-2025. 1- (A) Surendra Bada S/o Moharsai Aged About 62 Years R/o Village Podi, Gadabuda, Ward No. 2 Police Station- Podi District Manendragarh (M.C.B.) (C.G.) 2 - State Of Chhattisgarh Through- The Collector, Koria, District Koria (C.G.) ---- Respondents For Appellant : Shri Rohitashva Singh, Advocate For R1.A : Shri Pushkar Sinha with Ms. Shweta Bole, Advocates For State : Shri Aman Tamboli, Panel Lawyer KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.09.17 10:57:23 +0530 Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 06.08.2025 1. This appeal has been preferred by the appellant/ defendants under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 01.12.2011 passed by the learned IInd Additional District Judge, Manendragarh, District - Korea (C.G.) in Civil Appeal No.7-A/2011, whereby the first appellate Court has rejected the appeal filed by the defendants and affirmed judgment and decree dated 27.11.2010 passed by the Civil Judge, Class-II, Manendragarh (C.G.) in Civil Suit No. 135-A/2009 whereby the suit filed by the plaintiff for declaration and permanent injunction was allowed. 2. The parties to this appeal shall be referred to hereinafter as per their description in the civil suit. 3. Briefly stated the facts of the case are that 3.A) Plaintiff filed a suit before the learned Civil Judge, Class II, Manendragarh for declaration and permanent injunction over the land Khasra No. 94 area 0.259 Ha, P.H.No. 7, R.Circle Manendragarh, District Korea (suit land) contending that she was not legally wedded wife of defendant No. 1 and since 1978-79 they were in relationship and she lived with defendant No. 1 as his wife in his house for 14-15 years from 1980 to 1994. The plaintiff was working in the collieries since 1974 and was relieved from her job in 2002. Defendant No. 2 is the wife of defendant No. 1 who was living with defendant No. 1. 3.B) It has been further contended that when she was in service she had sufficient income, she withdrew Rs. 8000/- from her bank and purchased the land on 19.08.1987 from Suresh Chandra in cash and she took possession of the land and started cultivating it. It is also the case of the plaintiff that in the year 1994, the plaintiff was beaten up by defendant No. 1 and was thrown out of the house. When the Defendant No. 1 threw the plaintiff out of his house, he kept all the land papers with himself. 3.C) It has been further contended that the name of the plaintiff and defendant No. 2 are same therefore, the defendant No. 1 used to call defendant No. 2 as elder wife and the plaintiff as younger wife. Defendant No. 1 taking advantage of the identical name he started saying that the suit land has been purchased in the name of defendant No. 2. The plaintiff filed an application before the Tahsildar for declaration which was decided in favour of defendant No. 2 that suit land has been purchased in the name of defendant No.2. Aggrieved with the same, she filed appeal before Appellate Court. Learned Appellate Court remanded the matter back to the Tahsildar. The Tahsildar passed order on 19.05.2000 in favour of the plaintiff. Aggrieved with the same, defendants filed appeal before the SDO(R) who reversed the finding on 03.02.2004. 3.D) On 24.06.2001, defendant No. 1 threatened the plaintiff and ploughed the suit land forcefully. Against which the plaintiff lodged an FIR before the Police Station. It has been further contended that on the basis of order dated 03.02.2004, the defendant No. 1 tried to sell the suit land which necessitated the plaintiff to file the Civil Suit. 3.E) Defendant No. 1 filed written statement denying the allegation levelled in the plaint and contended that since the plaintiff and he were working in the same colliery therefore, they were known to each other and therefore, he used to visit house of the plaintiff. It has been further contended that the suit land has been purchased by defendant No. 2 in cash. The plaintiff was never in possession of the suit land. He also denied that plaintiff was his wife and prayed for dismissal of the suit. 3.F) On the pleadings of the parties, learned trial Court framed as many as 5 issues. Issue No. 1 and 2 are important for adjudication of the present appeal. 1. D;k oknHkqfe dks okfnuh us lqja’k pUnz ls jftLVMZ cSukeak }kjk dz; fd;k Fkk\ 2- D;k okfnuh oknHkqfe dh Lokfeuh gS\ 3.G) To substantiate her contention the plaintiff examined herself as PW1, Hansraj as PW2, Ram Avtar as PW3 and exhibited documents Ex.P1 to P7. Plaintiff’s witness PW-1 in her examination-in-cheif has reiterated the stand she has taken in plaint and in the cross-examination she has admitted that due to love affair defendant No. 1 used to visit her house and therefore, she say him her husband. She has further admitted that she had given the sale consideration during execution of sale deed and the original sale deed is in the possession of defendant No. 2. 3.H) The defendant No. 1 examined himself as DW1, Ramadhar Gautam as DW2, Rajaram as DW3 and did not exhibit any document. Defendant No. 1 in his examination-in - chief reiterated the stand he has taken in the written statement and in his cross-examination he has admitted that his elder wife used to do entire expenditure of the house chorus and denied that at the time of registry of the land, plaintiff was present before the Dy. Registrar’s Office. At the time of Registry, seller Suresh and witnesses Kashiram and Hansraj were present and he has purchased the land in the name of defendant No. 2 his elder wife. 3.I) The learned trial court on the basis of the pleadings of both the parties and after appreciating evidence and materials on record, decreed the suit. The learned trial Court while decreeing the suit, has recorded its finding that the plaintiff has produced the evidence of Hansraj Rai who was the witness of the sale deed. Hans Raj in his evidence before the trial Court has stated that plaintiff Ram Bai has purchased the suit land from Suresh Rai in his presence in cash to the tune of Rs. 8000. Defendant No.2 neither presented any evidence in her support nor has been examined before the Court. Only defendant No.1 has given his evidence in which he has stated that he has purchased the land in the name of his wife, defendant No. 2. The two witnesses whose evidence has been produced by defendant No.1 in the court have stated in the court that they do not know from whom and how much land was purchased. The trial Court has also recorded its finding that plaintiff has given evidence that she lived with Dharampal as a wife for 14-15 years and during this period she had purchased the disputed land. The plaintiff has given evidence that later defendant No.1 forcibly occupied her land. Similarly, no attesting witness has been produced by defendant No. 2. Therefore, it is quite vivid that the plaintiff herself has purchased the suit land, the original documents of which have been kept in the possession of the defendant No.2. Accordingly, all the questions were answered in the affirmative in favour of the plaintiff. 3.J) Being aggrieved with the judgment and decree, the defendants preferred first appeal before the IInd Additional District Judge, Manendragarh. Learned first appellate Court after re-appreciating the evidence and materials on record dismissed the appeal and affirmed the finding of the learned trial Court. Learned first appellate court recorded its finding that the plaintiff was working in the Colliery and she has lived with defendant No. 1 for 14-15 years from 1980 to 1994 and the land has been purchased on 19.08.1987. At the time of purchasing the land, she was working with the Colliery and relying upon the evidence of PW/3 Hansraj Rai it has recorded its finding that the plaintiff has given Rs. 8000/- to Suresh Chand and on the date of registration, the papers of registry has been taken by the plaintiff which clearly demonstrate that the sale deed was executed in favour of the plaintiff. It has also recorded its finding that since defendant No. 1 has forcefully ousted the plaintiff, it is quite possible that the plaintiff could not take the Registry papers and it were retained with the defendants. These facts would demonstrate that the plaintiff had purchased the land and accordingly, it dismissed the appeal. 3.K) Being aggrieved with the judgment and decree passed by the learned first appellate Court, the defendants have preferred the present Second Appeal mainly contending that learned trial Court has not framed specific issue with regard to identification of Rambai and no opportunity of hearing has been extended to Defendant No. 2 which are necessary for proper adjudication of the present case, therefore, would pray for setting aside the judgments passed by both the Courts below. 4. Learned counsel for the appellants would submit that the finding recorded by the learned trial Court affirmed by the learned first appellate Court is perverse and contrary to the evidence, as such, substantial question of law exists in the case, therefore, would pray for admitting the appeal. 5. Learned counsel for the respondent No. 1 would submit that the leaned first appellate Court has rightly dismissed the appeal, therefore, it does not call for any interference by this Court and would pray for dismissal of the present appeal. 6. I have heard learned counsel for the parties and perused the record. 7. From the evidence and materials placed before the learned first appellate Court and the trial Court it is quite vivid that both the courts below have recorded concurrent finding of facts that the plaintiff was working in the Colliery and she has lived with defendant No. 1 for 14-15 years from 1980 to 1994 and the land has been purchased on 19.08.1987. At the time of purchasing the land, she was working with the Colliery and in the bank account of the plaintiff name of Dharmpal has been entered as husband. The plaintiff has produced copy of the bank account to show the source of fund for purchase of the suit land. The defendants have not produced any documents to establish how funds for purchasing the land has been generated and even, defendant No. 2 has not been examined before the trial Court which are sufficient to draw an adverse inference against the defendants on the count of non-production of documents by defendants to show that the suit property was purchased by them from the fund owned by them and non-examination of the defendant No.2 who can be the best witness to prove the fact that she is the original Rambai who has purchased the suit property. In absence of any such material and non-examination of defendant No. 2 both the courts below have rightly drawn adverse inference against the defendants and decreed the suit which is in accordance with the well settled position of law with regard to drawing of adverse inference. Hon’ble Supreme Court in case of Chowdamma (D) by LR and Another vs. Venkatappa (D) by LRs and Another {2025 INSC 1038} has held as under :- 52. However, this defence is conclusively dismantled by the record itself. The deposition of D.W.1 (Balachandrappa) clearly indicates that defendant No. 1 was physically present in the Court during the examination of D.W.2 (G.V. Venkatappa), D.W.3 (Thimmappa) and D.W.4 (V. Thimmappa). It further emerges that defendant No.1 was also present in the Court when the evidence of P.W.1 (Venkatappa) was being recorded. If defendant No.1 was capable of attending the Court on multiple occasions, no explanation remains for her failure to offer her own testimony, except for calculated restraint. 53. This inference is inescapable. This is not a case of medical inability but of deliberate silence. In civil proceedings, particularly where the facts lie exclusively within the personal knowledge of the party, the refusal to enter the witness box carries grave evidentiary consequences. 54. This principle is neither novel nor uncertain. This Court in Vidhyadhar v. Manikrao and Anr.10 held thus: “17. Where a party to the suit does not appear in the witness- box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct …. ” 55. The present case is a compelling invocation of the above principle. Defendant No.1, though physically present in the Court during the trial, abstained from stepping into the witness box to rebut the plaintiffs’ assertions — assertions that strike at the very core of the dispute. In the absence of cogent medical evidence to support her alleged incapacity, her abstention from the witness box constitutes deliberate circumvention of the evidentiary burden resting upon her. 56. In the present factual matrix, the adverse presumption under Section 114(g) of the Evidence Act is inevitable. 57. This Court cannot overlook that defendant No. 1, while central to the controversy, chose not only to abstain from entering the witness box but also wilfully bypassed the statutory remedy available to those pleading physical incapacity. 8. In view of the aforesaid legal position and considering the facts of the case the findings recorded by both the Courts below cannot be said to suffer from perversity or illegality. Even otherwise, it is well settled position of law that this Court can interfere with the findings recorded by both the courts below if there is patent perversity or illegality which goes to the root cause of the case. As such, no substantial question of law exists in the appeal for admission which is sine-qua-non for admission of the second appeal, accordingly, the present second appeal deserves to be dismissed. 9. Consequently, the present Second Appeal is dismissed at the stage of admission. The interim order passed by this Court on 24.12.2019 is vacated. If the execution proceeding has not reached to its finality, the same shall be done expeditiously within 4 months. 10. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Deshmukh