1 2025:CGHC:1124 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 694 of 2018 1 - Dilip Singh Chhabra S/o Late Gyan Singh Chhabra, Age 61 Years, R/o Shyam Nagar, Thana Telibanda, District Raipur Chhattisgarh. (Defandant) ... Petitioner(s) versus 1 - Mahesh Kumar Mahilang S/o Sant Lal Satnami, Age 27 Years, R/o Village Bahnakadi, Tehsil Arang, District Raipur Chhattisgarh. (Plaintiff) 2 - Subedar Khunte S/o Itwari Khunte, Age 40 Years , R/o Bahnakadi, Thana Mandir Hasod, District Raipur Chhattisgarh 3 - State Of Chhattisgarh Through Collector, Raipur Chhattisgarh. (Defendants) ... Respondent(s) For Appellant : Mr. Parag Kotecha, Advocate For Respondent No.1 : Mr. Sachin Nidhi, Advocate For State Mr. Anurag Tripathi, Panel Lawyer SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Judgment on Board 08/01/2025 Digitally signed by SHYNA AJAY Date: 2025.01.09 15:48:05 +0530 2 1. This is a Second Appeal filed by the defendant under Section 100 of the CPC, 1908 against the judgment and decree dated 25.8.2018 passed by the Eighth Additional District Judge, Raipur in Civil Appeal No.48A/2018, reversing the judgment and decree dated 21.3.2018 passed by the Civil Judge Class-II, Raipur in Civil Suit No.267A/2014, whereby, the plaint has been dismissed. 2. By the impugned judgment and decree, the First Appellate Court, while partly allowing the appeal, granted permanent injunction in favour of the respondent/plaintiff to the effect that the appellant/defendant, without any due procedure of law, shall not intervene in the possession of the respondent/plaintiff with regard to Khasra No.106 admeasuring area 0.19 hectare. 3. So the short question that arises for consideration in this appeal is whether this second appeal involves any substantial question of law within the meaning of Section 100 of C.P.C. and whether such appeal should be admitted for final hearing ? 4. 5. The facts of the case lie in a narrow compass. However, they need mention. Respondent No.1 filed a suit for declaration of title and permanent injunction and also for declaration of the sale-deed dated 30.3.2013, which was executed by respondent No.2 in favour of the appellant, as null and void in respect of the suit property situated at village Behnakadi, Patwari Halka No.14, Revenue Division Mandir Hasaud, Tehsil Arang, District Raipur bearing Khasra No.106, Rakba 0.190 making averments inter alia that when he was a minor aged about 12 years, his mother had purchased the subject property in his 3 name by way of the registered sale-deed dated 23.10.1998 (Ex.-P/1), from the mother of respondent No.2 and has been in possession since then. Subsequently, respondent No.2, in the year 2013 , taking benefit of the fact that the name has not been corrected in the land records, sold the said property by the registered sale-deed dated 30.3.2013 in favour of the appellant/defendant No.2. It has also been averred that the plaintiff is in possession of the subject land. Though in the settlement, the purchased property of the plaintiff is recorded as Khasra No.105 vide Ex.P/1, but on the spot, the plaintiff is in possession of Khasra No106. Hence, the aforesaid suit has been filed. 6. The appellant/defendant No.2 denied the plaint averments stating that he has purchased the subject property from respondent No.2, who is the rightful owner of the suit property, and the plaintiff is wrongly claiming title over Khasra No.106. The trial Court, on the basis of the pleadings made by the parties, framed as many as eight issues and dismissed the suit of respondent No.1/plaintiff. It was averred that no document has been filed and proved by the plaintiff to show that there is any error in the entry of the settlement record. On an appeal filed by respondent No.1/plaintiff, the First Appellate Court partly allowed the appeal by the impugned judgment and it has been observed that the respondent/plaintiff has duly proved that he is in possession of the subject land and thus, permanent injunction was granted in his favour against the appellant to not to disturb the possession without the due course of law. Hence, this Second Appeal. 7. Learned counsel for the appellant would submit that the 4 appellant/defendant No.2 has purchased the subject property through the rightful owner/respondent No.2. He further submits that the trial Court has rightly reached to the conclusion that no document has been filed to prove that the plaintiff is the title holder of Khasra No.106 admeasuring 0.190 hectare which was purchased by the appellant. He further submits that the case of the plaintiff is explicit that he has purchased the property mentioning Khasra No.242/1 and as per the plaint averments, subsequently, the said Khasra No.242/1 was renumbered as Khasra No.105. However, the plaintiff is claiming title over Khasra No.106, which was purchased by the appellant herein. He submits that no record has been proved by the plaintiff to show that there is any error in the settlement record, therefore, the plea taken by the plaintiff that after the settlement, he is in possession of Khasra No.106 and the same has not been properly recorded, could not be accepted. He would further submit that the trial Court has assigned valid and good reasons while dismissing the suit, however, the Appellate Court, only on the basis of the presumption, reversed the said finding. Furthermore, the Appellate Court has also not recorded a specific finding of title over the subject land of the plaintiff and only granted a relief of permanent injunction. He would further submit that when the appellant has clearly proved his title on the basis of the sale-deed- Ex.D/1, his possession has to be presumed, as in the said sale-deed, it has been categorically mentioned that the possession has been delivered in favour of the appellant. For the above submission, he 5 would place reliance on the matter of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs, reported in AIR 2008 SC 2033 and referred to para 12 to 14, which read as under : 12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufÏcient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful 6 possession. Where the property is a building or building with appurtenant land, there may not be much difÏculty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. 14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. 8. Learned counsel for the appellant would lastly submit that the findings recorded by the Appellate Court are perverse. He submits that when the plaintiff has failed to proved the title of the subject 7 property, the Appellant Court ought not to have granted permanent injunction to him and thus, the same is not sustainable. 9. Heard learned counsel for the parties and also perused the record with utmost circumspection. 10. On perusal of the record, it is explicit that way back on 23.10.1998. when respondent No.1/plaintiff was minor, his mother Pacho Bai had purchased the property i.e. a part of Khasra No.242/1 admeasuring area 0.190 hectare, from the mother of respondent No.2 namely Smt. Jag Bai W/o Shri Itwari. In the said sale-deed, the boundaries have clearly been defined by mentioning that in the north, land of Mulchand, in the south, land of Subedar (respondent No.2) and in the east, land of the seller -Jag Bai and in the west, land of Ashok Kumar is situated. The First Appellate Court has relied on Ex.P/14, a report filed by the Halka Patwari sent to the Additional Tehsildar, wherein, it has been categorically mentioned that the plaintiff is in possession of the subject land i.e. Khasra No.106 admeasuring 0.19 decimal. It has also been mentioned in the said report that in the land record, the name of the son of Jag Bai namely Subedar (respondent No.2 herein), who has sold the subject property in favour of the appellant through the registered sale-deed dated 30.3.2013 (Ex. D/1), has been recorded in respect of the said Khasra Number. In the sale- deed – Ex.D/1, there is no mention about the persons who are in possession of the said land and only khasra numbers are mentioned. 11. Plaintiff – Mahesh Kumar Mahilang (PW-1) has categorically deposed that after the purchase of the subject property on 23.10.1998, the 8 said property is in continuous possession with them by way of cultivation and the said fact has also been corroborated and supported by two of his witnesses namely Narayan Das (PW-2) and Daulal Kurre (PW-3). The appellant herein has not examined any independent witness, however, he has given a generalised statement that he is in possession of the subject land after the purchase. The trial Court based on the fact that no document has been filed with regard to any error in the settlement record, discarded the oral evidence of the plaintiff’s witnesses. However, the Appellate Court has rightly corrected the same for the reason that it has been categorically established that the plaintiff is in possession of the property purchased by him way back on 23.10.1998 and the same has been corroborated in the report submitted by the Patwari on 26.8.2013 vide Ex.P/14 and more so, only by taking benefit of the fact that the name of the seller-respondent No.2 is mentioned in the record, the subject property was sold in favour of the appellant. 12. 12. The plaintiff has duly purchased the subject property and accordingly came into its possession, therefore, the Appellate Court has rightly protected his possession until evicted in due course of law by establishing title by the other side. Hence, the case law relied by learned counsel for the appellant is distinguishable on facts. In my view, the judgment and decree passed by First Appellate Court is just, proper and legal. It does not call for any interference. 13. Considering the facts and circumstances of the case and on perusal of the record of the case, I concur with the reasoning and conclusion 9 of the First Appellate Court and find absolutely no merit in this appeal as it involves no question of law much less substantial question of law within the meaning of Section100 of C.P.C. and thus, it deserves to be dismissed in limine. 14. To conclude, there is no merit in the appeal. The Appeal, involving no substantial question of law within the meaning of Section 100 of the C.P.C., fails and is hereby dismissed in limine resulting in upholding of the impugned judgment and decree passed by the First Appellate Court. Sd/- (Deepak Kumar Tiwari) Judge Shyna