-1- 2025:CGHC:49006 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 236 of 2019 Haricharan S/o Puran Aged About 70 Years R/o Village Porda Tehsil Gharghoda, District Raigarh Chhattisgarh .. Appellant (s) versus 1 - Govind S/o Baratram Aged About 43 Years R/o Village Hirapur, Tehsil Lailunga District Raigarh Chhattisgarh (Plaintiff No.1) 2 - Sunkirtan S/o Baratram Aged About 40 Years R/o Village Hirapur Tehsil Lailunga District Raigarh Chhattisgarh. (Plaintiff No. -2) 3 - Kaushalya, Wd/o Buturam @ Santram Aged About 65 Years R/o Village Porda, Tehsil Gharghoda, District Raigarh Chhattisgarh. (Defendant No. -2) 4 - State Of Chhattisgarh, Through Collector, Raigarh District Raigarh Chhattisgarh. (Defendant No. 3) ... Respondent(s) __________________________________________________________ For Appellant (s) : Ms. Aditi Joshi, Advocate on behalf of Ms. Madhunisha Singh, Advocate For Resp No. 1 & 2 : Mr. Sandeep Patel, Advocate For State/Resp No.4 : Mr. Kalpesh Ruparel, Panel Lawyer _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 24/09/2025 1. This second appeal is filed by appellant/defendant challenging Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.10.14 11:09:14 +0530 -2- impugned judgment and decree dated 15.02.2019 passed in Civil Appeal No.05/2018 by learned Additional District Judge, Gharghoda, District- Raigarh whereby learned first appellate Court set aside the judgment and decree passed by learned trial Court and has remitted the case back for trial. 2. Learned counsel for the appellant/defendant would submit that after receipt of notice of suit filed by respondents No. 1 & 2/plaintiffs seeking relief for declaration of title and possession of the land bearing kh. No.263/2, 278/1 admeasuring 0.210 hectare and 0.202 hectare respectively, defendants have submitted an application under Order VII Rule 11 of CPC on the ground that land subject matter of civil suit has already been acquired by South Eastern Coalfield Limited (SECL) and therefore dispute if any with regard to title over the property subject matter of acquisition under the Coal Bearing Areas (Acquisition and Development) Act, 1957 (for short “Act of 1957”) would be considered only by the competent authority and not by jurisdictional civil Court as envisaged under Section 26 of the Act of 1957. Learned trial Court upon appreciation of grounds pleaded in the application and the pleadings made in the plaint has rejected the suit under Order VII Rule 11 (d) of CPC which was upon proper appreciation of facts and law applicable to the case. She submits that learned first appellate Court erroneously, taking note of Section 14 (2) of the Act of 1957, came to conclusion that Central Govt. has not authorized any person or authority to decide the claim of title. She also contended that impugned judgment and decree passed by learned first appellate Court is contrary to law and hence it be set aside. -3- 3. On the other hand, learned counsel for respondents No. 1 & 2/plaintiffs would submit that learned trial Court has dismissed the suit under Order VII Rule 11 (d) of CPC. According to wordings made in the provision under Order VII Rule 11 (d) of CPC, for considering whether civil suit filed is barred by any law, contents of plaint/pleading made in the plaint only are to be taken into consideration. Court is not required to consider any other document as an evidence for dismissing the suit under Order VII Rule 11 (d) CPC. In support of his contention he places reliance upon the decision in the case of Chhotanben and Anr. Vs. Kiritbhai Jalkrushnabhai Thakkar and Ors. (2018) 6 SCC 422. 4. I have heard learned counsel for the parties and also perused the record of trial Court. 5. Perusal of the plaint would show that plaintiffs/respondents No. 1 & 2 in plaint has pleaded that out of three khasra numbers i.e. 263/2, 278/1 and 282/2, only kh. no. 282/2 was acquired by SECL. There is no pleading that other khasra numbers on which relief is claimed is also acquired by SECL. From bare perusal of pleading made in the plaint it is not appearing that land subject matter of relief clause was ever acquired by SECL and for any reason plaintiffs are seeking declaration of title on the land said to be acquired by SECL. However, they are claiming title based on right given up by Haricharan, Buturam and Baratram as two brothers i.e. Haricharan and Buturam had sold the property in dispute in favour of Baratram. 6. Provision under Order VII Rule 11 (d) of CPC reads thus: “11. Rejection of Plaint- The plaint shall be rejected in -4- the following cases :- a) x x x b) x x x c) x x x d) Where the suit appears from the statement in the plaint to be barred by any law; x x x ” 7. Perusal of the provision itself is very clear that for considering rejection of plaint under Rule 11 (d) of Order VII of CPC only the averment made in the plaint is to be considered whether the suit is barred by any law or not. 8. Hon’ble Supreme Court in case of Chhotanben (supra) held as under. “15. What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18-10-1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellant- plaintiffs is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to -5- 6. They acquired that knowledge on 26-12-2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendants 1 and 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (½) portion of the land so designated towards their share. However, when they realised that the original Defendants 1 and 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by Respondent 1-Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view commends to us. 16. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in para 10). The approach of the trial court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] , Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100] and also T. Arivandandam v. T.V. -6- Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] . 17. These decisions have been noted in Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust [Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , where this Court, in para 11, observed thus : (SCC p. 714, para 11) “11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] , in which, while considering Order 7 Rule 11 of the Code, it was held as under : (SCC p. 560, para 9) ‘9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit —before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.’ It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the -7- averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100] .” 9. Perusal of plaint would show that it is filed for declaration of title and possession against the defendants i.e. a private person and State. It is pleaded that out of total land mentioned in suit, part of which i.e. 58 decimals of land plaintiff is having right and title. From the pleadings of plaint it is not appearing that suit land which is claimed is acquired or acquisition is disputed. Learned trial Court considered pleadings of plaint partly and pleading of the application under Order 7 Rule 11 (d) of CPC has concluded that the suit is hit by Section 26 of the Act of 1957. It is not apparent, as to whether entire land against which relief is claimed was under acquisition proceedings, which can be ascertained only after trial. 10. In the facts of case, the issue which is sought to be raised by defendants can be very well be raised in their written statement to be filed and it is for learned trial Court to frame issue on all points which are subject matter of dispute considering the pleadings made in the plaint and written statement and thereafter to decide the issues based on evidence to be brought on record by respective parties. 11. Second appeal is to be admitted only when there is substantial question of law. Though in the appeal, appellant has proposed the -8- 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 permissible 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 record. 12. 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 -9- 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. 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.” 13. 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 -10- 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 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 -11- 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 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 -12- 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 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 -13- 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 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.” 14. For the foregoing discussions, evidence available on record, judgments as referred to above, in the opinion of this Court, the finding recorded by the first appellate Court is on proper appreciation of facts and evidence, hence, it 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. 15. However, it is made clear that it is for the trial Court to formulate the -14- issues on all the points to be raised by both the sides and thereafter to decide the suit on the basis of available evidence to be brought on record by respective parties during trial. Sd/- Sd/- (Parth Prateem Sahu) Judge Praveen