-1- 2025:CGHC:48529 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 369 of 2018 Anumesh Construction Through Through- Proprietor Arvind Bolar S/o Kanhaiya Lal Bolar, R/o- Near Manohar Talkies, Bilaspur, District- Bilaspur, Chhattisgarh. ... Appellant (s) versus Ramkishor Sharma, Aged about 38 years S/o Ravi Shankar Sharma,, R/o- Torva, Main Road Torva, Bilaspur, District- Bilaspur, Chhattisgarh. Full Address- Torva Pump House, Behind The Doctor Benerjee, Near Ganesh Nayak, Torva, Bilaspur, District- Bilaspur, Chhattisgarh ... Respondent(s) __________________________________________________________ For Appellant (s) : Mr. Sunil Verma, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 22/09/2025 1. Appellant/plaintiff has filed this appeal challenging legality and sustainability of the judgment and decree dated 8th February 2018 passed in Civil Appeal No.71-A/2017 by learned District Judge, Bilaspur whereby appellate Court while affirming judgment and decree of dismissing the suit, has dismissed the appeal. Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.10.14 10:13:57 +0530 -2- 2. Facts relevant for disposal of this appeal are that appellant-plaintiff filed a suit for restraining the defendant/respondent from interfering with peaceful possession of the plaintiff in suit property on the ground that plaintiff is a Firm who provides help to its consumers in purchase of land and construction on the said land. Plaintiff had got sale deed executed in the name of defendant without sale consideration only on surety of plaintiff. Sale deed was registered. Defendant has entered into an agreement that he will got the house constructed from plaintiff only and will pay cost of construction of land in installment. Land was diverted through him on the expenses of plaintiff. Construction work was started by plaintiff and it was up to door level. Even asking for consideration of land and cost of construction on several occasions defendant did not give any heed to it and subsequently refused to pay. It is also pleaded that intention of defendant is to take possession of house under construction forcefully because the registry of land is not in his name. The work of construction is stopped because defendant has not paid installment. Defendant is having intention of getting the house constructed from some other contractor. 3. Defendant denied the pleadings made in the plaint in his written statement. He contended that at the time of purchasing the land by defendant he paid sale consideration to owner of land Omkar Prasad Sharma on the date of execution of sale deed dated 03.12.2004 and it was accordingly recorded in the sale deed. He also contended that agreement which is relied upon by plaintiff is forged and fabricated. It does not bear the date nor it mentions any work of constructions. It also does not mention that the sale consideration was paid by the -3- plaintiff or sale deed was executed on his surety. The agreement was not properly stamped. He also denied the other pleadings made in the plaint of apprehension of taking forceful possession by defendant. It is pleaded that there was no agreement between plaintiff and defendant for getting house constructed by the plaintiff and therefore there is no question of construction of portion of house up to door level. After purchase of land in the name of his wife, he gave contract for construction of house to one Guni Rajput and based on agreement executed between Guni Rajput and defendant, he got the house constructed up to door lever on his own expenses. It is also pleaded that suit in its form is not maintainable as the main intention of plaintiff for filing of suit is for recovery of amount towards sale consideration and part of construction up to door level. It is further pleaded that there was no cause of action available to plaintiff in view of pleading made in the plaint. Encroachers cannot claim injunction against true owner. It is also pleaded that from pleading made, contents of sale deed as also order of diversion it cannot be presumed that plaintiff was in possession of suit property . Suit was not properly valued at market rate. It is contended that sale deed was executed on 03.12.2004. Suit was filed after more than 3 years i.e. 16.03.2011 and therefore suit is barred by limitation. It is also pleaded that suit is not maintainable in view of provision under Order II Rule 2 CPC. Defendant has also filed counter claim seeking relief of declaration of alleged agreement dated 25.11.2004 to be null and void and by that agreement defendant No.1 therein (Anumesh Construction) does not get any right on the suit property and has sought for injunction against defendant No.1 therein. -4- 4. Learned trial Court upon considering the pleadings made by respective parties has formulated as many as 8 issues for consideration and dismissed the suit recording a finding that plaintiff failed to prove that he is in possession of suit property admeasuring 990 sq.ft. out of land bearing Kh. No. 1297 /2 and under construction house over it. Plaintiff also failed to prove that defendant is interfering with possession of plaintiff or is attempting to interfere with possession of plaintiff. Learned trial Court has also recorded finding that defendant/plaintiff in cross-suit has proved that he is the owner of suit property and is in his possession. Issue with regard to whether the suit was barred by limitation has been decided in negative. Judgment and decree of trial Court was put to challenge by appellant/plaintiff in an appeal filed under Section 96 of CPC and learned first appellate Court also dismissed the appeal affirming judgment and decree passed by learned trial Court. Learned first appellate Court also recorded that sale deed Ex.P-1 was executed by the original owner of land namely Omkar Prasad Sharma after accepting sale consideration of Rs.99,000/- on the date of executing sale deed i.e. 03.12.2004. There is no reason to take the contrary view based on agreement Ex.P-10. It is also recorded that plaintiff could not able to prove that he was in possession of the land admeasuring 990 sq.ft. and under construction house on it but defendant is in possession and owner of suit property. It is also recorded that defendant is in continuous possession of suit property and plaintiff has not filed suit for removing possession of defendant from suit property and further that when plaintiff was not in possession of suit property therefore no question of defendant being interfering -5- with possession of plaintiff. Plaintiff has even not sought for possession of suit property and, therefore, appellant/plaintiff even if has extended some help in purchase of property and even if expended some amount in raising construction he could not become entitled to get the decree of injunction in his favour. 5. Learned counsel for the appellant/plaintiff would submit that learned Courts below erred in dismissing the suit and passing the impugned judgment and decree dismissing the appeal erroneously. He contended that learned trial Court has not formulated proper issues and appreciated contents of agreement entered into between parties. 6. I have heard learned counsel for the appellant and also perused the records of both the Courts. 7. Perusal of pleading and evidence of plaintiff it appears that entire claim of plaintiff is based on agreement Ex.P-10 which is written on stamp paper of Rs.10/- In agreement it is mentioned that on the land bearing kh. no.1297/2 admeasuring 42 acres recorded in name of Omkar Prasad Sharma, plaintiff is raising construction of multistory residential houses and all the work of construction and sale was to be done by party No.2 i.e. plaintiff. It is also mentioned that construction will be started within 12 months from the date of agreement . Plaintiff to prove pleading made in the plaint has examined himself as PW-1 and one Shravan Sahu as PW-2. In para-28 of his cross-examination, plaintiff admitted that sale deed was executed in favour of defendant No.1 and his wife by Omkar Prasad Sharma on 03.12.2004 and the signature on the agreement to sell in Ex.P-6 and Ex.P-7 was by Yogendra Sharma -6- in the year 2001. In para-32 he admitted that he filed the suit because he was not paid the construction charges up to door level and expenses of registry. He shown his unawareness as to whether Court fee accordingly affixed in plaint of seeking money claim. Though he denied that from the date of purchase of suit land, defendant is in possession, however, he stated that defendant No.1 is in possession of suit land since date of passing of an order by Court of temporary injunction in favour of defendant No.1. He also admitted that he has not prayed for any relief of removing possession of defendant No.1 from suit property. PW2 examined by plaintiff has only stated that he used to collect money from plaintiff and make payment to shopkeeper from whom bricks, sand, iron rod, cement etc are purchased. Though he made statement in chief that construction of the house of defendant No.1 is being done by plaintiff under his supervision, he however stated that defendant has not come to office of plaintiff. Yogendra Sharma is examined as PW3. He stated that he entered into agreement to sell the land bearing kh. no.1297/2 measuring 0.42 acres to plaintiff . He in para-12 admitted that it is in his knowledge that his father got sale deed executed in favour of defendant and his wife on 03.12.2004. He also admitted that after execution of power of attorney in his favour his father has executed sale deed. He also admitted that in sale deed it is mentioned that sale consideration has been settled between purchaser and seller and it is part of sale deed executed before Sub-Registrar, Bilaspur. He however stated that sale consideration was paid by Arvind, the plaintiff, however it is not the case of plaintiff that he has paid sale consideration but stated that sale deed was executed on his -7- surety. 8. Defendant has examined himself as DW1 and one Guniram Rajput as DW2 with whom defendant No.1 has entered into agreement for construction of house on the land purchased by him from Omkar Prasad Sharma vide registered sale deed Ex.P-1 . 9. Learned trial Court, after minutely examining and appreciating the evidence oral and documentary available on record, dismissed the suit filed by the plaintiff, holding that the plaintiff failed to prove possession of 990 sq.ft. suit property (Kh. No. 1297/2) and the under-construction house thereon. Plaintiff also failed to show that the defendant interfered with his possession. Learned first appellate Court upheld the trial Court’s judgment and decree. Learned appellate Court also affirmed that sale deed (Ex.P-1) was validly executed by the original owner on 03.12.2004 after receiving sale consideration amount of Rs. 99,000/. Plaintiff failed to establish his possession, while the defendant was in continuous possession and ownership. Finding recorded by learned trial Court as also by appellate Court is factual finding on appreciation of evidence. 10. Second appeal is to be admitted only when it involves substantial question of law. Though in the appeal, appellant has proposed the questions to be substantial questions of law, however, from bare perusal of it would show that attempt is made to get the facts and evidence to be re-appreciated which is not admissible in appeal filed under Section 100 of CPC unless and until it is pleaded that finding recorded by Courts below is perverse to the evidence available on -8- record. 11. Hon’ble Supreme Court in case of State of Rajasthan and Ors. Vs. Shiv Dayal and Anr. (2019) 8 SCC 637 has observed thus: “14. True it is as has been laid down by this Court in several decisions that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). However, this rule of law is subject to certain well-known exceptions mentioned infra. 15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the appellate court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance. 16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was 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. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. -9- Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.) 17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.” 12. Hon’ble Supreme Court in case of C. Doddanarayana Reddy (dead) by LRs and Ors. Vs. C. Jayarama Reddy (Dead) by LRs. and Ors. (2020) 4 SCC 659 has observed thus:- 25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] , it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) “12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392] , this Court held : (SCC p. 393) ‘It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil -10- Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.’ 14. In Navaneethammal v. Arjuna Chetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC p. 166) ‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.’ 15. And again in Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [Taliparamba Education Society v. Moothedath Mallisseri Illath M.N., (1997) 4 SCC 484] , this Court held : (SCC p. 486, para 5) ‘5. … The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.’” 26. In a judgment in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the first appellate court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible -11- evidence or arrived at without evidence. This Court held as under : (SCC p. 725, para 5) “5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the Apex Court, or was based upon in inadmissible evidence or arrived at without evidence.” 27. In another judgment in Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] , this Court held as under : (SCC pp. 187-88, para 14) “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial”, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An -12- entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 28. Recently in another judgment in State of Rajasthan v. Shiv Dayal [State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637 : (2019) 4 SCC (Civ) 203] , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under : (SCC p. 640, para 16) “16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was 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. (See observation made by the learned Judge Vivian Bose, J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] , AIR Nag para 43).” 29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not -13- stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court. 30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact.” 13. For the foregoing discussions, evidence available on record, judgments as referred to above, in the opinion of this Court, the finding recorded by both the Courts is on proper appreciation of facts and evidence. Hence, the concurrent finding recorded by both the Courts does not call for interference of this Court. No substantial question of law is involved in this appeal. It is accordingly dismissed at motion stage. Sd/- Sd/- (Parth Prateem Sahu) Judge Praveen