1 2025:CGHC:12006 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 244 of 2014 1 - Venendra Kumar Sharma S/o Dwarika Prasad Sharma Aged About 67 Years R/o Sunder Nagar, Raipur, P.S. And Post- Sunder Nagar, Civil and Revenue Distt. Raipur C.G., ... Appellant versus 1 – C.P. Dubey S/o Late S.N. Dubey Aged About 69 Years R/o House No. 07, Sunder Nagar, Raipur, P.S. And Post- Sunder Nagar, Civil and Revenue Distt. Raipur C.G., 2 - Sunder Nagar Grih Nirman Samiti Maryadit Mahadev Ghat Road, Raipur C.G., 3 - Smt. Rama Verma W/o L.N. Verma Aged About 60 Years R/o House No. 8, Sunder Nagar, Raipur, P.S. And Post- Sunder Nagar, Civil and Revenue Distt. Raipur C.G., ... Respondent(s) For Appellant : Shri Manoj Paranjpe with Shri Sandeep Patel, Advocates. For Respondent No.3 : Shri Rishikant Mahobia with Shri Akash Pandey, Advocates. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 11/03/2025 : KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.03.12 15:19:36 +0530 2 1. This Appeal has been preferred under Section 100 of the CPC against the judgment and decree dated 23.6.2014 passed by the 3rd Additional District Judge, Raipur in Civil Appeal No.11-A/2012 thereby affirming the judgment and decree dated 11.4.2012 passed by the 5th Civil Judge Class-II, Raipur in Civil Suit No.24- A/2009 whereby the suit preferred by the appellant/plaintiff has been dismissed and the counter claim filed by the defendants No. 1 & 3 was allowed holding that in subject land i.e. Khasra No.302/01, village Dangnia, PH No.104 ad measuring 600 sq. feet as per the sanctioned lay out of respondent No.2/society is reserved for road and, therefore, the respondent/society has no right to alienate the same in favour of the appellant/plaintiff. Accordingly, the sale deed executed by respondent No.2/Society in favour of the appellant/plaintiff on 11.3.2002 was declared as null and void and the plaintiff was directed to remove the encroachment from the subject land for the use of general public. Permanent injunction has also been granted against the plaintiff. 2. Hereinafter the parties shall be referred to as per their description before the trial Court. 3. Facts of the case are that the appellant/plaintiff had filed a civil suit for declaration and injunction in respect of the subject land, with an averment that he had purchased the subject property from respondent No.2/Society through the registered sale deed dated 1.3.2002 and he had also obtained possession. Thereafter, an application was preferred by the private respondent No.1 before 3 the Deputy Registrar, Cooperative Society without impleading the appellant/plaintiff and the said authority had passed an order on 30th June, 2003 restraining the appellant from raising construction and for removal of possession and the super-structure and the boundary wall standing on the subject land. Thereafter the present suit has been filed for declaration and permanent injunction by the appellant/plaintiff herein. 4. In the written statement filed by respondents No.1 & 3, they have categorically stated that the subject land was earmarked for the road and the Society has no right to execute the sale deed in favour of the appellant/plaintiff. It was prayed that the sale deed executed by the Society be declared as null and void, and a counter claim has also been filed. 5. On the basis of pleadings of the parties, the trial Court has framed as many as 14 issues and after evaluating the evidence available on record, the trial Court has reached to the conclusion that the subject land was earmarked for the road and the Society has no right to alienate the subject land in any manner, and the sale deed executed in favour of the appellant/plaintiff was declared as null and void. Permanent injunction was also issued against the appellant/plaintiff. Hence the suit preferred by the appellant/ plaintiff was dismissed and the counter claim/suit preferred by defendants No.1 & 3 was allowed. Against the said finding, the appellant/plaintiff has preferred a First Appeal, which was also dismissed. Therefore, this Second Appeal. 4 6. On 02.11.2023, the present Appeal was admitted on the following substantial questions of law:- “1. Whether the learned trial Court was justified in recording the finding that the suit was filed by the plaintiff is not maintainable in view of bar contained in Section 82 (3) of the Chhattisgarh Cooperative Societies Act, 1060 (sic ‘1960’)? 2. Whether the learned trial Court was justified in allowing the counter claim on perverse finding without any material placed on record by the defendants?” 7. Learned counsel for the appellant would submit that respondents No.1 & 3 have not produced any lay out to show that the subject land was reserved or earmarked for the road and, therefore, the finding recorded by both the Courts below is erroneous. He would further submit that it was also wrongly held that the suit is not maintainable in view of Section 82 (3) of the CG Cooperative Societies Act, 1960. Thus learned counsel for the appellant prays that the present Appeal may be allowed and the finding recorded by both the Courts below may be set aside. 8. On the other hand, learned counsel for respondent No.3 would submit that both the Courts below have appreciated the evidence in its proper perspective and the impugned judgment is well merited which does not call for any interference. Learned counsel for respondent No.3 would further submit that as the dispute does not pertain to the Society and, therefore, the suit filed by the plaintiff was maintainable. However, he would submit that both the Courts below were justified in allowing the counter claim, as 5 the said finding is based on proper appreciation of evidence on record. 9. I have heard learned counsel for the parties at length and perused the record with utmost circumspection. 10. There is concurrent finding of fact recorded by both the Courts below to the effect that the subject land was earmarked for the road, as per the sanctioned lay out, which was also admitted by one of the employees of the Society namely, PW-2 Virendra Singh Thakur. The said witness has also admitted the fact in para-17 of cross-examination that without any sanction or modification by the competent authority i.e. the Town and Country Planning, the lay out cannot be changed. Thus from the aforesaid statement, it is explicit that the subject land is earmarked for the road and the defendant/Society has wrongly shown the subject land in favour of the appellant. 11. In the considered opinion of this Court, both the Courts below have rightly reached to the conclusion that the subject land is earmarked for the road and the sale deed was declared as null and void. Resultantly the suit preferred by the appellant/plaintiff was dismissed and the cross-suit filed by respondents No.1 & 3 was allowed. 12. In the matter of State of Rajasthan and others Vs. Shiv Dayal and another, reported in (2019) 8 SCC 637, reiterating the settled proposition, it has been held that when any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point 6 out that it is bad in law because it was recorded de hors the pleadings or based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. 13. Having heard learned counsel for the parties and on perusal of record of the case and in view of the above settled legal proposition, I find absolutely no merit in this appeal and the judgment and decree passed by both the Courts below appear to be just, proper and legal. The findings recorded by both the Courts are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they do not call for any interference. 14. So far as substantial questions of law are concerned, it is held that the suit was maintainable and the trial Court has rightly dismissed the suit preferred by the plaintiff and allowed the counter claim preferred by defendants No.1 & 3. Thus the substantial questions of law are answered accordingly. 15. In the result, the Second Appeal fails and is hereby dismissed upholding the judgment and decree of both the Courts below. 16. No order as to costs. 17. A decree be drawn accordingly. Sd/- (Deepak Kumar Tiwari) Judge Barve