1 2025:CGHC:55235 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 486 of 2017 1 - Tulsi Ram Jain S/o Chouberam Jain Aged About 41 Years R/o Village Albelapara Ward Kanker, Tahsil- Kanker, District North Bastar Kanker, Chhattisgarh., Chhattisgarh ... Petitioner(s) versus 1 - Janak Bai D/o Peeluram Aged About 45 Years R/o Village Albelapara Ward Kanker, Thsil Kanker, District North Bastar Kanker, Chhattisgarh., Chhattisgarh 2 - Hirna Bai W/o Sadashiv Durg, Aged About 55 Years R/o Village Albelapara Ward Kanker, Thsil Kanker, District North Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh 3 - Pushpendra Sen S/o Dwarika Prasad Sen Aged About 28 Years R/o Village Albelapara Ward Kanker, Thsil Kanker, District North Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh 4 - Aashish Sen S/o Dwarika Prasad Sen Aged About 25 Years R/o Village Albelapara Ward Kanker, Thsil Kanker, District North Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh 5 - State Of Chhattisgarh Through District Magistrate District North Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Hemant Kumar Agrawal, Advocate. For Respondent No. 1. : Mr. Parag Kotecha, Advocate. For Respondent No.2. For Respondent No. 3 & 4. : : Mr. Malay Shrivastava, Advocate. Mr. D. N. Prajapati, Advocate. ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.01.31 10:54:03 +0530 2 Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board 12/11/2025 1. The present second appeal under Section 100 of the Code of Civil Procedure 1908, has been filed by the plaintiff against the impugned judgment and decree dated 03.01.2017 passed by learned Additional District Judge, Kanker, District North Baster Kanker in Civil Appeal No. 13-A/2016, whereby the first appeal filed by the plaintiff has been dismissed and the judgment and decree dated 07.05.2016 passed by learned First Civil Judge Class-I, North Baster, Kanker in Civil Suit No. 19-A/2013 has been affirmed. 2. The plaintiff has filed a civil suit against the defendants for possession of the suit property, Khasra No. 215 and 222/21 area 0.68 acre situated at Albelapara, Kanker, and also for permanent injunction. It is pleaded by the plaintiff in the plaint that the suit property was obtained by him through a will dated 12.03.1988 executed by his grandfather Phool Singh Kalar. His grandfather has died on 06.06.1999, and thereafter, the suit property is recorded in his name, however, the defendant Nos. 1 to 4 have encroached the suit property by constructing their house. When the plaintiff asked them to vacate the suit property, they started an altercation and there is every possibility of an untoward incident, therefore, the plaintiff has filed the suit for possession and permanent injunction. 3. The defendant No. 1 has filed her written statement and denied the plaint averment and pleaded in the written statement that she has purchased 4 decimal of land of Khasra No. 221/1 from Phool Singh Kalar through a registered sale deed dated 30.11.1995 for the total consideration of Rs. 25000/-. After its purchase, she came into possession of the same and constructed a house and residing thereon. She also denied the execution of the will in favour of the plaintiff on 12.08.1998. The defendant No.1 is in possession of her purchased land through her own right and title and her 3 sale deed has not been challenged by anyone and therefore, no right or title is in favour of the plaintiff over the land of the defendant No.1 and the suit is liable to be dismissed. 4. The defendant No.2 contested the claim of the plaintiff and filed her written statement, denied the plaint averment and pleaded that she has purchased the land of Khasra No. 221/1 area 0.11 acre from Phool Singh Kalar for the total consideration of Rs. 22,000/- and after its diversion from the competent authority, she constructed a house and residing thereon. After its purchase of the land from Phool Singh Kalar, she has got mutated her name in the revenue records and her name has been certified in the records on 17.09.1991. Phool Singh Kalar has died on 06.06.1999 and during his life time he has not challenged the title and possession of the defendant No.2. There is no cause of action in favour of the plaintiff against the defendant No.2 and the suit of the plaintiff against her is liable to be dismissed. 5. The Defendant Nos.3 and 4 have also filed their written statement separately and denied the plaint averment and pleaded in their written statement that they have purchased 12 decimal of the land through a registered sale deed dated 01.06.2006 from Siyaram Sahu and their names have also been mutated in the revenue records. The land over which the defendants No.3 and 4 are in possession, the plaintiff has no right or title over the same. They also denied the execution of the will in favour of the plaintiff by Phool Singh Kalar and further pleaded that there is no cause of action against the defendant No.3 and 4 and the suit is liable to be dismissed. 6. Based on the pleadings of the parties the learned trial Court has framed the following issues: "द न 1. अब छ.ग त द खस न. 215, 222/2 ! ब 0.68 "स# $ द# दद % सग & दन 12.03. 1988 $ द# ' स# तन न(दत ग ? 4 2. द# उ* द + तद#गण स - न अ.# /0 ? 3. उ* द सब. द# अन ' त तद#गण 12 द दख स न3.त न बबत4 ई न3.6 - न अ.# /0? 4. स/ त ए 8 ?” 7. In support of his claim, the plaintiff has examined himself as PW-1, Shyamlal Sahu PW-2, Sohan Lal PW-3 and relied upon the documents Ex.P/1 which is the revenue map Ex.P/2 is the Khasrapanshala, Ex.D/1 Kishtbandi. The defendants have examined Janakbai DW-1, Smt. Hirja Bai DW-2, Meghnath DW-3, Pilu Ram DW-4, Pushpendra Sen DW-5, and Jagat Ram DW-6 and they relied upon the documents Ex.D/1 which the wrinpushtika, Ex.D/2 B-1/ Kishtbandi, Ex.D/3 is Khasrapanshala, Ex.D/4 is the order of diversion passed by SDO, Kanker and thereafter, with respect to the defendant No.2, again the documents have been relied upon which are the copy of wrinpustika Ex.D/1, sale deed in favour of Hirja Bai Ex.D/1, mutation register Ex.D/2, sale deed in favour of Pushpendra Sen Ex.D/2, revenue map Ex.D/3. 8. After appreciation of oral as well as documentary evidence led by the parties the learned trial Court comes into the conclusion that the plaintiff has failed to prove that his grandfather Phool Singh Kalar executed will in his favour on 12.03.1988, and he is not entitled for possession of the suit land and dismissed the suit of the plaintiff. 9. The judgment and decree passed by learned trial Court was challenged by the plaintiff before the learned first appellate Court and the first appellate Court has affirmed the judgment and decree of the trial Court and dismissed the first appeal vide its judgment and decree dated 03.01.2017 which is under challenge in the present second appeal. In the present second appeal, on 05.05.2025, the appellant has filed an application under Order 41 Rule 27 read with Section 151 of CPC for taking additional evidence on record and another application under Order 6 Rule 17 read with Section 151 of CPC for 5 amendment in the prayer clause of the memo of appeal. Along with the application of Order 41 Rule 27 the appellant has filed a copy of will deed dated 12.03.1988 and copy of B-1 Kishtbandi of the year 1978-79 and revenue map. 10. Learned counsel for the appellant/plaintiff would submit that the suit property initially belongs to Phool Singh Kalar, who executed a will in his favour on 12.03.1988 with respect to the remaining part of the land of Khasra No. 215 and 222 and the claim of the defendants that they have purchased the suit property of Khasra No. 221/1, therefore, the defendants have no right or title over the suit property of the plaintiff and the decree should have been passed by the learned trial Court as well as first appellate Court. The defendants have filed their written statement with vague pleading and without any details of their purchase of the property. He would further submits that the plaintiffs claims is over Khasra No. 215 and 222/21, whereas the defendants have purchased the land of Khasra No. 221/1, but they possessed the land of the plaintiffs and therefore, the defendants cannot challenge the title of the plaintiff which he obtained through a will executed by his grandfather Phool Singh Kalar. The learned courts below have dismissed the suit of the plaintiff, holding that the plaintiff has failed to prove his title over the suit property and therefore, he is not entitled for a decree of possession, which is erroneous and the same are liable to be set aside. He would also submit that both the Courts below have non-suited the plaintiff, holding that the plaintiff neither prove his title nor proved the identity of the land by producing any demarcation report that the defendants have encroached his land, which the part of Khasra Nos. 215 and 222/21. The plaintiff had filed the copy of will along with the application under Order 41 Rule 27 of CPC, which is relevant in the case for proper adjudication of the dispute between the parties, which may be considered and the matter may be remitted back to the learned trial Court for fresh adjudication after 6 providing opportunity of hearing to the parties. He would also submits that the plaintiff had filed another Civil Suit No. 85-A/2007, in which he filed the said will deed and could not file the copy of will deed in the present suit which is sufficient for taking additional evidence on record and to allow the application of Order 41 Rule 27. 11. I have heard learned counsel for the appellant on admission of the appeal perused the record of the trial Court as well as the first appellate Court. 12. The claim of the plaintiff in the present suit was that his grandfather had executed a will in his favour on 12.03.1988 with respect to the land of Khasra No. 215 and 222/21 and after death of his grandfather on 06.06.1999, he would be the title and possession holder of the suit land of Khasra No. 215 and 222/21 total area 0.68 acre but the defendants have encroached his land and therefore, claim decree of possession of the said land. The learned trial Court has framed issues as to whether a will was executed in favour of the plaintiff by his grandfather on 12.03.1988 with respect to the suit land of Khasra No. 215 and 222/21, and therefore, the plaintiff was required to prove the due execution of the will in his favour. In the suit, the plaintiff has not filed the copy of the will, which is allegedly executed by his grandfather on 12.03.1988, except for the revenue map Ex.P/1, Khasrapanchshala Ex.P/2, B-1 Kishtbandi Ex.P/3 no other document has been filed by him. Even after the dismissal of the suit by the learned trial Court, he has not filed the copy of the will during the pendency of the first appeal. When the plaintiff has pleaded in his plaint that his grandfather Phool Singh executed a will on 12.03.1988, and as per the submission made in the application of Order 41 Rule 27 of CPC, he filed another Civil Suit bearing Civil Suit No. 85-A/2007, in which the said will was filed, then for the reason best known to the plaintiff, why he has not filed the copy of will in the present suit. The claim of the plaintiff for the possession of the suit land is based on his title, and unless he proves title over the suit land, a decree for possession cannot be passed, 7 and in the present case, both the Courts below have found that the plaintiff has failed to prove his title over the suit land. 13. The plaintiff in Para-2 of his cross-examination stated that he could not remember as to on what date his grandfather had executed the will. He denied that he has not produced the will in the case. It was a registered deed and scribed by a notary. Who was the notary he could not tell. In Para-6 he admitted that he has filed another suit with respect to the will and in the present suit, he has not filed a copy of will. The plaintiff’s claim is based on the will and he has not filed a copy of the will despite being cross-examined by the defendant on this point. It is not the case here that he was not in knowledge of the execution of the alleged will, but he has not choose to file said will and to prove it in accordance with the law. 14. The plaintiff’s claim is the land of Khasra No. 215 and 222/21, whereas the defendants claim is over the land of Khasra No. 221/1. The plaintiff has admitted that his grandfather Phool Singh has sold the 4 dismil of land of Khasra No. 221/1 to Smt. Janak Bai on 30.11.1995, and he has no objection to the said sale. Janak Bai is in possession of the land since 1995. He also admitted that Hirja Bai had purchased 11 dismil of land from Khasra No. 221/1, from Phool Singh and he has no dispute with Hirja Bai. He also admitted that Hirja Bai is not in possession of his land and her purchased land is not the suit land. He further stated that he could not tell as to defendant No.3 and 4 had purchased the land from Siyaram Sahu. He also could not tell as to whether Siyaram Sahu had purchased the land from his grandfather or not. He admitted that Siyaram Sahu was in possession of the land in which the defendant No. 3 and 4 are in possession at present, since 20 - 25 years. He also admitted that the land purchased by the defendant No. 3 and 4 Pushpendra and Ashish Sen are not included in the suit land and he has no dispute with them and he is not claimed any relief from them. 8 15. When the plaintiff himself have admitted that the land purchased by the defendant are the different then the land which he claimed, no relief of possession can be granted in his favour. Even the plaintiff has failed to prove that the defendants are in possession of any part of the land of 215 or 222/21 by producing any demarcation report or any other evidence. 16. So far as the application under Order 41 Rule 27 of CPC is concerned, the application cannot be allowed at this stage on the ground that the same has not been filed during the trial as well as first appeal despite knowledge and possession of the said document, which he could file during the trial as well as first appeal. Order 41 Rule 27 (aa) would clearly preclude the plaintiff from filing of the additional evidence in the second appellate stage as the document was well within his knowledge and he could file it before the trial Court. As per the admission in his evidence that the defendants are not in possession of the plaintiff’s land and they are in possession of their purchased land, and the plaintiff has no dispute with respect to their possession. Further from the perusal of the application of Order 41 Rule 27 of CPC, it transpires that another Civil Suit filed by the plaintiff bearing Civil Suit No. 85-A/2007 was travelled upto High Court in Second Appeal No. 408/2014 and as per the submission made by learned counsel for the parties, the said second appeal is disposed of in non-compliance of preemptory order dated 07.02.2024. Therefore, considering the facts and circumstances of the case as well as the evidence produced by the plaintiff, the application of Order 41 Rule 27 of CPC is rejected. 17. Another application filed by the plaintiff is under Order 6 Rule 17 of CPC for an amendment in the prayer clause of the memo of appeal. On due consideration, this Court is of the opinion that the prayer made in the application is not necessary to be incorporated in the memo of appeal as it is the Court’s discretion that if the application for additional evidence is to be 9 allowed, they have to proceed in accordance with law and therefore, the application of Order 6 Rule 17 of CPC, is also disposed of. 18. From the aforesaid consideration, this Court does not find any question of law, much less a substantial question of law, involved in this present second appeal for its determination and accordingly, the second appeal is dismissed without notice to the other side. 19. No order as to costs. Sd/- (Ravindra Kumar Agrawal) Judge Alok