1 2025:CGHC:34264 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 183 of 2012 1. Helena Bai (Died) Through Lrs As Per Honble Court Order Dated 25-06- 2021. 1.1 - Smt. Suniti Baa Aged About 58 Years W/o Sudarshan Tete, R/o Bhaneshwar Mission, Jairam Nagar, Bilaspur, District Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh 1.2 - Smt. Sandhya Rani Baa W/o Suman Tirkey Aged About 49 Years R/o Bhaneshwar Mission, Jairam Nagar, Bilaspur, District Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh ... Appellant (s) versus 1. Petrick Dungdung S/o Juliyas Dungdung Aged About 78 Years Caste Khadiya, R/o Village Bhanesar, P.S. Tahsil - Masturi, Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh 2. Ku. Karuna D/o Petrik Dungdung Aged About 38 Years Caste Khadiya, R/o Village Bhanesar, P.S. Tahsil - Masturi, Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh 3. Smt. Sushila W/o Rajendra Dungdung Aged About 41 Years Caste Khadiya, R/o Village Bhanesar, P.S. Tahsil - Masturi, Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh 4. Sudhir S/o Petrik Dungdung Aged About 35 Years Caste Khadiya, R/o Village Bhanesar, P.S. Tahsil - Masturi, Distt. Bilaspur (Chhattisgarh), District: Bilaspur, Chhattisgarh 5. Rajendra Dungdung S/o Petrik Dungdung Aged About 42 Years Caste Khadiya, R/o Village Bhanesar, P.S. Tahsil - Masturi, Distt. Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.09.16 11:41:19 +0530 2 6. State of Chhatisgarh Through- Collector, Bilaspur (Chhatisgarh), District: Bilaspur, Chhattisgarh ... Respondent(s) For Appellant : Mr. Anil Singh Rajput, Advocate For Respondent(s) : Mr. Vineet Kumar Pandey, Advocate For State : Mr. Kalpesh Ruparel, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 18/07/2025 1. The instant Second Appeal filed under Section 100 of CPC is directed against the judgment and decree dated 07.02.2012, passed by District Judge, Bilaspur, in Civil Appeal No. 21-A /2011, whereby the plaintiffs’ appeal has been dismissed by affirming the judgment and decree dated 23.02.2011, passed by 2nd Civil Judge Class-1, Bilaspur, in Civil Suit No. 34-A/2009. 2. The parties have been described as per their description given in the civil suit No. 34-A/2009 before the trial Court. 3. The appeal has been admitted on 12.07.2021 on the following substantial question of law:- “Whether, both the Courts below was justified in dismissing the suit by recording the finding which is perverse to the record by not appreciating the Commissioner report (Ex.P-5)”. 4. Brief facts of the case reflected from the record are that the plaintiff filed the suit for declaration of title and permanent injunction mainly contending that the plaintiff is owner of land bearing khasra No. 117/59 area 0.040 hectare and khasra No. 117/60 area 0.053 hectare situated at village 3 Bhanesar, PH No. 37, R.N. M. Seepat, Tahsil Masturi and she is possession of the said property. It is also contended that in January 2008 the defendant forcibly entered in the aforesaid land and tried to start construction over the above land, therefore, the plaintiff filed an application under Section 250 of the Land Revenue Code before Tahsildar. Thereafter, the Tahsildar passed the order in favour of the plaintiff and directed the respondents to remove his possession from 0.05 acre of the land in question and thereafter just before one week prior to filing of Civil Suit the respondents forcefully started the construction over the land and digged hole on the above land which necessitated the plaintiff to file civil suit. 5. The defendants filed their written statement denying the averments made in the plaint and contended that the defendants have constructed construction in their own parental land which is recorded in the name of wife of defendant No.1 and father of defendant No. 2, 4 and 5 and mother in law of defendant No.3 bearing khasra No. 117/1 area .08 acres, they are in possession of the suit property for a long time and they have also moved an application for grant of lease on 20.06.2007 and the appellant handed over 27.06 feet long and 51 feet wide land out of 0.23 acres of suit land to defendant No.1 before Panchayat since then defendant No.1 is in possession of the said land. It is also contended that the defendant No.1 is in possession of the said land. Thereafter the plaintiff’s father granted lease of Khasra No. 117/1 area 0.06 acres whereas she is claiming possession on the basis of forged demarcation of land khasra No. 117/59 and 117/60 which is encroached land, therefore, the plaintiff is not entitled to get relief and prayed for dismissal of the suit. 4 6. Learned Trial Court on the basis of evidence, material on record has dismissed suit vide its judgment and decree dated 23.02.2011 while recording its finding that the plaintiff has not annexed any map of the property and on which part of the land the defendants have encroached the land has not been verified, even no revenue records have been placed on record to establish that the plaintiff is title holder of the suit property and accordingly the suit has been dismissed. 7. Being aggrieved with the judgment and decree of the trial court, the plaintiff has filed the suit before first appellate court under Section 96 of the CPC, the first appellate court vide its judgment and decree dated 07.02.2012 has dismissed the appeal, recording its finding that the plaintiff is unable to establish that the plaintiff is title holder of the suit property. The first appellate court has also recorded its finding that as per demarcation report Ex.P-5 the defendant No. 1 has not encroached land bearing khasra No. 117/59 and 117/60 in fact they are in possession of khasra No. 117/32 area 0.5 dismil and the plaintiff has also admitted before Panchayat that she has given lease of 23 dismil land out of which 22, ½ feet long to defendant No.1 and the suit land is not related to khasra No. 117/32. Accordingly it has dismissed the appeal. 8. Being aggrieved with the judgment and decree passed by first appellate Court, the plaintiff has filed the instant Second appeal before this Court which is admitted on the afore stated substantial question of law. 9. Learned counsel for the appellant would submit that both the Courts below have erred in not considering Panchanama Ex.P-5 which has been recorded in accordance with the law, therefore, findings are perverse and 5 on the perverse finding the judgment and decree has been passed, therefore, the appeal may be allowed. 10. On the other hand learned counsel for the respondents would submit that khasra No. Ex.P-5 has not been recorded as per law and author of the document has not been examined before the trial Court and merely execution of the documents does not prove the contents of the documents and in absence of examining the statement of author of the document it cannot be held that the Appellate court has committed any illegality in not relying the panchanama and would pray for dismissal of the appeal. 11. I have heard learned counsel for the parties and perused the record. 12. Considering the facts, it is well settled legal position of law that for claiming declaration and title the plaintiff shall prove legal right over the suit property and unless and until the plaintiff is able to establish his title over the suit property she cannot claim injunction restraining the defendant to interfere in her peaceful possession over the suit property. 13. From bare perusal of the judgment and decree, evidence brought on record it is quite vivid that both the courts below on the concurrent finding of fact have recorded their finding that the plaintiff is unable to establish his title over the suit property and on the contrary the plaintiff in her statement has admitted that she has given her shares of 22,1/2 feet long and 51 feet width to her elder brother which is renumbered as khasra No. 117/32. The record of the case would demonstrate that to rebut such finding recorded by the trial Court no material was placed before it, therefore, in absence of material on record, I do not find any perversity or illegality in recording 6 such finding therefore, substantial question of law framed by this Court deserves to be answered against the plaintiff/appellant. 14. It is well settled legal position of law the High Court while hearing appeal under Section 100 CPC should not disturb the concurrent finding of fact, recorded by both the courts below unless they are based upon no evidence and suffers from perversity. The Hon’ble Supreme Cout in the case of Vishwanath Agrawal vs. Sharla Vishwanath Agrawal reported (2012) 7 SCC 288 held as under:- "36. In Major Singh Vs. Rattan Singh it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. Manikrao, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem V. Karnaraka Electricity Board. 15. Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, in the present case concurrent finding of facts have been recorded by both the courts below that the defendants have not encroached the land belonging to the plaintiff, based on evidence, as such substantial question of law framed by this Court deserves to be answered against the plaintiff and in favour of defendant. 7 16. Accordingly, appeal deserves to be dismissed and it is dismissed. No order as to costs. A decree be drawn-up accordingly. Sd/- (Narendra Kumar Vyas) Judge Santosh