1 2025:CGHC:43249 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 328 of 2018 1. Kanhaiyalal S/o Shankarlal Aged About 52 Years R/o Village Limgaon , Tahsil Saraypali, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh 2. Punitram S/o Shankarlal Aged About 52 Years R/o Village Limgaon , Tahsil Saraypali, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ... Petitioner(s) versus 1. Shyamlal S/o Chakravorty Aged About 65 Years R/o Village Limgaon , Tahsil Saraypali, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh 2. Shivlal S/o Chakravorty Aged About 60 Years R/o Village Limgaon , Tahsil Saraypali, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgar 3. State Of Chhattisgarh Through Collector, Mahasamund District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ... Respondent(s) For appellants : Mr. Ravindra Sharma, Advocate. For respondent No.1/State. : Mr. Aman Tamboli, Panel Lawyer 2 (Hon’ble Mr. Justice Narendra Kumas Vyas) Judgment on Board 26/08/2025 1. Heard on admission. 2. The appellants/plaintiffs have preferred this Second appeal under Section 100 of the CPC against the judgment and decree dated 13-2-2018 passed by Additional District Judge, Saraipali, District Mahasamund in Civil Appeal No. 14-A/2017 whereby the learned First Appellate Court has dismissed the appeal and affirmed the judgment and decree dated 18-8-2017 passed by learned Civil Judge, Class-1, Saraipali, wherein learned Civil Judge, Class-1, Saraipali, District Mahasamund has dismissed the suit for declaration and permanent injunction in Civil Suit No.116 -A of 2014 . 3. The brief facts reflected from the plait averments are that; (a) the fathers of plaintiffs and defendants No.1 and 2 namely Shankarlal and Chakravarty are real brothers and the property situated at village Limgaon, Patwari Halka No. 37, R.N.M. Khamharpali, account No.29 total Khasra No.42 area 14.063 hectares and account No.27, total Khasra No.02 area 0.505 hectares of land were recorded in the name of fathers of the plaintiffs and defendants No.1 and 2. The plaintiffs and the defendants fathers have jointly purchased the land situated at RNM Khamhakhali village Chhindpali, Patwari Halka No. 37 Tahsil and District Mahasamund admeasuring 1.45 Ha in the name of plaintiffs and defendants No. 1 and 2 which is the suit property and described in the Schedule A of the plaint. (b) It is also case of the plaintiffs that partition has been taken place with regard to property situated at village Limgaon in the year 1986-87 and as per partition, the property situated at village Chindpali bearing Khasra No.02 area 1.45 Ha has been received by the plaintiffs, as such the names of defendants No. 1 and 2 should have been deleted from the revenue records. 3 But, the defendants No. 1 and 2 have submitted an application before the Tahsildar for partition and the dispute regarding the title of the land arose, therefore, the Tahsildar has stopped the partition proceeding which has necessitated the plaintiff to file a suit for declaration of title and grant of permanent injunction to restrain the defendants from causing obstruction in the peaceful possession of the plaintiffs over the suit property. 4. The defendant No. 1 and 2 have filed their written statement mainly contending that Shankarlal and Chakravarty were real brothers and their father late Gosairam (expired in 1956), Ramnath and Loknath were real brothers. Since Loknath was issue-less, he was residing with Gosairam, therefore, in the life time, Loknath had done partition of property situated at village Limgaon in the year 1967-68 between Shankarlal and Chakravarty and about five acres of land was kept by Loknath and after death of Loknath and his wife, both brothers with consent have done partition. It is denied that fathers of the plaintiffs and defendants No. 1 and 2 were jointly residing and they have purchased the suit property. It has also been contended that after partition, they have purchased the suit property in the name of plaintiffs and defendants and in presence of their uncle a partition has been done and the plaintiffs and defendants have partitioned their share between their brothers on account of partition and since then they are in possession of their respective share. It is also contended that the suit property with the consent of parties has already been divided in four parts but since no revenue records were divided, therefore, with consent an application was submitted before the Gram Panchayat wherein a demarcation was ordered by the Panchayat. Thereafter, the defendants have moved an application for partition of the revenue record. It has also been contended that the Tahsildar, Saraipali on 18-04-2011 has called for objection but no objection was raised. But because of delay tactics adopted by the plaintiffs the partition has not been taken place and have prayed for dismissal of the suit. 4 5. Learned trial Court on the pleadings of the parties has framed as many as four issues. Learned trial Court on the basis of evidence and material on record has recorded its finding in paragraph 9 of its judgment that from the evidence and material on record it is quite vivid that partition has been taken place with regard to the suit property described in Schedule A of the plaint and plaintiffs are unable to establish that they have received share in the partition. 6. Being aggrieved by the impugned judgment and decree, the plaintiffs have filed the appeal before the learned First Appellate Court and the learned First Appellate Court has dismissed the appeal. Learned First Appellate Court while dismissing the appeal, recorded its finding in paragraph 11 of the judgment that from the evidence and material on record it is quite vivid that the plaintiffs and defendants are in possession of the suit property and from the evidence, it is not established that plaintiffs have obtained 1.45 Ha in partition as burden lies upon them to prove the facts which they miserably failed to prove. Being aggrieved by the said judgment and decree, the plaintiffs have preferred this second appeal before this Court. 7. Learned counsel for the appellants/plaintiffs would submit that the finding recorded by the learned trial Court is perverse and contrary to the evidence as there was sufficient material placed on record by the plaintiffs to demonstrate that no partition has been taken place and the property purchased by fathers of the plaintiffs and defendants falls within the share of plaintiffs. As such, on perverse finding the trial court has dismissed the suit which has wrongly been affirmed by the learned First Appellate Court. He would further submit that the findings recorded by the courts below are perverse and are not based on legally admissible evidence. Thus, he would pray for setting aside the judgment and decree passed by the courts below. 8. I have heard learned counsel for the appellants and perused impugned judgment and decree annexed with the appeal memo. 5 9. Considering the fact that both the courts below have categorically recorded their finding that the plaintiffs and defendants No. 1 and 2 are in peaceful possession of their respective shares and no evidence was placed by the plaintiffs to substantiate that this property was purchased by the fathers of plaintiffs and defendants No. 1 and 2 in the name of plaintiffs and defendants. The record of the case would further demonstrate that suit property has been recorded in the names of the plaintiffs and defendants jointly, as such it cannot be said that the suit property should be mutated in the names of the plaintiffs only and accordingly the learned trial Court has dismissed the suit. Thus, there is a concurrent finding of fact which is not liable to be interfered by this Court.. Accordingly, both the courts below have rightly dismissed the suit after appreciating the evidence, material on record and considering the relevant provisions of law which does not suffer from perversity or illegality , therefore, no substantial question of law is required to be answered by this Court whereas the substantial question of law is a sine qua non for admission of second appeal. 10. Accordingly, this appeal is liable to be dismissed at admission stage itself and accordingly it is dismissed. 11.A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.09.19 12:59:43 +0530