2025:CGHC:38218 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 610 of 2015 1 - Nemichand S/o Mehatruram, Aged About 56 Years Caste Sahu, Occupation Agriculturist, R/o Village Sohpur, Tahsil Gurur, District Balod Chhattisgarh.........Plaintiff, Chhattisgarh ... Appellant(s) versus 1 - Gayatri Bai W/o Santram, Aged About 33 Years Caste Sahu, Occupation Agriculturist, R/o Village Sohpur, Tahsil Gurur, District Balod Chhattisgarh, Chhattisgarh 2 - The State Of Chhattisgarh Through The Collector Balod, District Balod Chhattisgarh..........Defendants, District : Balod, Chhattisgarh ---- Respondents For Appellant : Shri R.K. Pali, Advocate For State : Shri K.L. Sahu, Dy. Govt. Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 04.08.2025 1. This appeal has been preferred by the appellant/plaintiff 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 16.09.2015 passed by the learned IInd Additional District Judge, Balod (C.G.) in Civil KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.09.17 10:57:23 +0530 Appeal No.6-A/2015, whereby the first appellate Court has rejected the appeal filed by the plaintiff and affirmed judgment and decree dated 23.02.2015 passed by the IInd Civil Judge, Class-II, Balod (C.G.) in Civil Suit No. 62-A/2014 whereby the suit filed by the plaintiff for declaration of easementry right and mandatory injunction over the property 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 IInd Civil Judge, Class II, Balod for declaration of easement and issuance of mandatory injunction to remove the obstruction contending that a 10 feet long street which was situated in Khasra No. 641 village Lohpur Tehsil Gurur District Balod Chhattisgarh (Suit Land) passes through the main road and goes to the farm through the house of Sukhu and Gajadhar, was being utilised for plying to agricultural field by the plaintiff for the last 40 years. It has been further contended that the defendant No. 1 has illegally purchased his house from Indra Kumar through an agreement without registration and Indra Kumar has illegally purchased it from the original leaseholder Sohagilbai and has extended it by 2 feet and constructed a house and has obstructed the old way of movement by constructing a shed in the remaining 8 feet lane. The plaintiff has the easement right to use the said lane where the public have been using it for the last 40 years therefore, prayed for grant of mandatory injunction. 3.B) The defendant No. 01 filed written statement denying the allegation on the ground that there was never a street at the place mentioned in the suit. The plaintiff has a separate path to go to his field. It has also been contended that apart from the plaintiff, Tejram or anyone else never objected saying that it is a public path and prayed for dismissal of the suit. 3.C) On the basis of written and oral evidence and arguments of both the parties, the trial court framed as many as 3 issues. Issue No. 2 is important for adjudication of the present appeal which is extracted below :- “ D;k oknh mDr 10 QqV lkoZtfud xyh esa lq[kkf/kdkj izkIr djus dk vf/kdkjh gS\” 3.D) To substantiate his contention the plaintiff examined himself as PW1, Tukaram as PW2, Bishal Singh as PW3 and Ramkumar as PW4. The defendant examined herself as DW1. The learned trial court on the basis of the pleadings of both the parties and after appreciating evidence and materials on record, passed the judgment dated 23.02.2015 and dismissed the suit. While dismissing the suit, learned trial Court recorded its finding that the plaintiff has not produced any document to show that the suit property was public street which was being used for the last 40 years by them. Therefore, issue No. 1 was decided against the plaintiff. Learned trial Court further observed that from perusal of Ex.P7 and 8 it is not clear that the documents relate to which land, accordingly, it has recorded its finding that the plaintiff is unable to establish his case that the defendant has constructed house and courtyard over the street. It has also recorded its finding that the plaintiff has other route to go to his agricultural field, therefore, the plaintiff cannot be granted easement right over the suit property, accordingly, decided issue No. 2 and 3 against the plaintiff and the suit was dismissed. Being aggrieved the plaintiff preferred civil appeal before the IInd Additional District Judge, Balod. 3.E) Learned first appellate Court after re-appreciating the evidence and materials on record vide judgment and decree dated 16.09.2015 dismissed the appeal and affirmed the finding of the learned trial Court. Being aggrieved with the judgment and decree passed by the learned first appellate Court, the plaintiff has preferred the Second Appeal. 4. Learned counsel for the appellant 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 State 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 has not been able to establish that the said street is a public street and except said street he has no other way to go to his field, therefore, he is not entitled for grant of easement right and removal of the house and the courtyard constructed by defendant No. 1 from the suit land. These finding of facts cannot be said to suffer from perversity or illegality. As such, no substantial question of law exists in the appeal which is Sine- qua-non for admission of the appeal. Accordingly, the present second appeal deserves to be dismissed. 8. Consequently, the present Second Appeal is dismissed at the stage of admission. 9. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Deshmukh