1 2025:CGHC:48527 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 99 of 2018 1. Durga Singh S/o Bhangi Singh Aged About 74 Years R/o Village Pipartarai, Tahsil Kota, District Bilaspur, Chhattisgarh (Plaintiff), District : Bilaspur, Chhattisgarh ... Appellant/plaintiff versus 1. Bharat Singh S/o Anup Singh Aged About 70 Years R/o Village Pipartarai, Tahsil Kota, District Bilaspur, Chhattisgarh 2. State Of Chhattisgarh Through Collector, Bilaspur, District Bilaspur, Chhattisgarh. ... Respondents/Defendants For Appellant : Mr. Manoj V Paranjpe, Sr. Advocate assisted by Mr. Sandeep Patel, Advocate For Respondent No.1 : None For Respondent No.2 : Mr. Ajay Kumarani, Panel Lawyer. SB:Hon'ble Mr. Justice Parth Prateem Sahu Judgment on Board 22.9.2025 1. Heard on admission. 2. Plaintiff/appellant has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity “CPC”) against the judgment and decree dated 6.2.2018 passed by the learned Additional District Judge, Bilaspur SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 District Bilaspur (CG) in Civil Appeal No.46A/2017 thereby affirming the judgment and decree dated 3.4.2017 passed in Civil Suit No.27-A/2012 whereby learned Civil Judge Class-II Kota, District Bilaspur (CG) has non-suited plaintiff / appellant herein. 3. Facts of the case, in brief, are that plaintiff/appellant herein filed a civil suit against the defendants/respondents herein seeking relief of declaration and permanent injunction in respect of land bearing Khasra No.825/3 area 0.56 acre situate in village Pipartarai, District Bilaspur, which will be referred hereinafter as ‘the suit property’. It was pleaded in the plaint that plaintiff and defendant belong to same family; the suit land is their ancestral property which had fallen in the share of father of plaintiff at the time of family partition and since then he is in peaceful continuous possession of the same. After partition, due to oversight, suit land came to be recorded in the name of father of defendant No.1 and on coming to know about this fact, amendment deed dated 19.4.1985 on a stamp paper of Rs.7/- was executed by father of defendant No.1 and based on which, name of plaintiff was mutated in land records by the Mutation Officer. However, when plaintiff visited Halka Patwari to get copy of his account, he came to know that suit land is still continuing in the name of defendant No.1 and therefore, he submitted an application 3 for recording the suit land in the name of plaintiff and based on which record was corrected in the name of plaintiff. Defendant No.1 submitted an application before the Tahsildar, Kota to illegally get possession of suit land, which came to be rejected vide order dated 24.8.2011 on the ground that suit land has already been transferred in the name of plaintiff, which has not been challenged by defendant No.1. Appeal preferred against order dated 24.8.2011 was allowed by learned Sub Divisional Officer (R) Kota on the ground that though order of mutation in favour of plaintiff was passed on 12.5.1985, but on the date of making application by defendant for grant of possession, it was recorded in name of defendant; land record has been corrected in the name of plaintiff without there being any order of the Court. After passing of order by SDO, defendant is trying to take possession of suit land and also giving threats to plaintiff due to which he and his family members are under fear. 4. Defendant No.1 filed written statement contending that the suit land was received by his father in a family partition in the year 1986 and since then they are in possession and occupation of the same. Plaintiff fraudulently obtained order dated 22.4.1985 on the basis of durustinama executed on stamp paper of Rs.7/- but did not get his name mutated in land records because mutation cannot be done based on 4 non-judicial stamp of Rs.7/-. Plaintiff with intent to grab the land of share of defendant No.1. On application being filed by defendant No.1 before the Tahsildar, Kota for granting vacant possession of suit land, plaintiff came up with reply that he has purchased the suit land from father of defendant No.1 in the year 1985 and later on got executed durustinama. Thus, the plaintiff has made contrary statement in plaint and reply filed before the Tahsildar, Kota. It was further contended that the Patwari has no power to correct the record in respect of transfer took place on 22.4.1985, this power lies with the Court only. Suit for declaration of title and permanent injunction based on order dated 22.4.1985 after a lapse of so many years is barred by limitation and liable to be dismissed. 5. On the pleadings of the parties, the trial Judge framed as many as three issues; given opportunity to the parties to adduce evidence, both oral and documentary, and after a full fledged trial rendered a decision non-suiting the plaintiff / appellant herein recording that plaintiff in the plaint as also in his evidence narrated contradictory version with respect to the very basis of his claim i.e. as to how he came into possession of the suit land and therefore, on the basis of evidence available it is not found proved that the suit land fell into share of plaintiff in family partition was mistakenly recorded in the name of father of defendant No.1. Though father of defendant 5 No.1 had executed durustinama in favour of plaintiff upon receipt of Rs.5,000/- on a non-judicial stamp paper of Rs.7/-. Alleged unregistered agreement between plaintiff and defendant No.1 was in resepct of transfer of immovable property whose value is more than Rs.100/-, therefore, in view of specific provision contained in Section 54 of the Transfer of Property Act and Section 17 (1) (b) of the Registration Act, 1908, it does not confer title or create any right in favour of plaintiff. 6. Against the judgment and decree passed by the trial Court the plaintiff/appellant preferred first appeal before the first appellate Court and the same also came to be dismissed by impugned judgment and decree herein affirming the findings of the trial Court. 7. This second appeal against concurrent finding has been filed by plaintiff/appellant proposing following substantial questions of law:- “1. Whether the findings recorded by the learned trial Court that the plaintiff is not in possession of the property in question are perverse on the state of evidence on record.? 2.Whether the findings recorded by the learned Courts below that the property was not fall in share of 6 Lusru Singh are perverse and contrary to the evidence available on record? 3. Whether the learned Courts below while passing the impugned judgment and decree have failed to appreciate that separate cultivation itself proved the partition especially when the partition has not been denied by the defendants? 4.Whether the learned Courts below have justified in refusing the decree of injunction despite of the material on record with regard to possession of the plaintiff over the land in question? 5. Whether the findings recorded by learned trial Court are perverse?” 8. Learned Senior Counsel for appellant would argue that learned trial Court erred in holding that the plaintiff failed to establish his title over the suit property. He submits that suit property is ancestral joint family property and upon partition among family members, it fell into share of father of plaintiff and since they are in continuous possession of the same. However, due to oversight, the suit land came to be recorded in the name of father of defendant No.1 and when said fact is unearthed, father of defendant No.1 himself executed rectification deed dated 19.4.1985 (Ex.P-9) in favour of plaintiff/appellant to the effect that at the time of partition, it 7 mistakenly recorded in name of defendant No.1’s father, and therefore, father of defendant No.1 will have no objection if it is corrected in the name of plaintiff. Thereafter, the suit land came to be recorded in the name of plaintiff vide order dated 22.4.1985. He next contended that the suit filed by plaintiffs seeking relief of temporary injunction is not on the ground that defendants are trying to interfere with possession of plaintiffs over suit land and in fact, it was prayed that defendants be restrained from interfering with possession of the plaintiff over suit land. Even, defendant No.1 himself submitted an application before Tahsildar Kota for delivery of possession, which was rejected vide order dated 24.8.2011 on the ground that suit land is mutated in the name of plaintiff in the year 1985, which goes to show that the plaintiffs are in possession of the suit land prior to and at the time of filing of suit. Hence, learned trial Court erred in not granting relief of injunction as claimed by plaintiffs/appellants, ignoring that they are in possession of the suit property. 9. Heard counsel for the appellant on admission and perused the record of both the Courts. 10. It is seen from the record that the plaintiff in support of his case has produced documents related to suit land i.e. B-1 (Ex.P-1), Panchsala (Ex.P-2), order sheet dated 24.8.2011 passed by Tahsildar, Kota in Revenue Case No.09/A-70/10- 8 11 (Ex.P-3), order passed by Tahsildar, Kota dated 11.6.2012 (Ex.P-4), order dated 29.8.2012 (Ex.P-5), order dated 114.12.2012 (Ex.P-6) order of SDO (R) dated 18.7.2012 (Ex.P-7), order dated 17.6.2015 (Ex.P-8), durustinama dated 19.4.1985 (Ex.P-9) and kishtbandi khatoni B-1 of the year 1995-96 (Ex.P-10). 11. From the plaint averments it is clear that the plaintiff filed civil suit claiming declaration of title and permanent injunction on the ground that his father received suit land in a family partition, however, due to inadvertence, it was recorded in name of father of defendant No.1, therefore, a rectification deed Ex.P-9 was executed in his favour based on which name of plaintiff was recorded in land records vide Mutation Register No.19 dated 22.4.1985 and thereafter rin pustika was prepared in the name of plaintiff. Plaintiff though filed said rectification deed dated 19.4.1985 (Ex.P-9) along with plaint but no other document showing ownership of plaintiff or his predecessors-in-interest/ ancestors over the suit land is filed by plaintiff. 12. Defendant No.1 denied the execution of said rectification deed (Ex.P-9) contending that plaintiff had concocted and forged the document with intent to grab share of defendant No.1. 9 13. It is well settled that the party who claims right based on the rectification deed carries the burden to prove its execution and authenticity including that it was executed to correct a genuine mistake. As defendant No.1 denied and disputed execution of rectification deed Ex.P-9, the burden of establishing the execution of document, was on plaintiff. Obviously, oral testimony cannot confer ownership/title of the suit land on the appellant/plaintiff, he had necessarily to prove, ordinarily by unimpeachable documentary evidence, that the suit property fell to the share of his father on there being an oral partition and from which appellant has inherited the suit property being his son. The only document filed by plaintiff is rectification deed of Ex.P-9 and even this document could not be proved as a true and valid document by plaintiff by producing acceptable evidence like proceeding drawn based on rectification deed Ex.P-9 which culminated into order of mutation dated 22.4.1985 or rin pustika prepared pursuant thereto, as claimed by plaintiffs in plaint. Plaintiff has also not examined witnesses to said rectification deed Ex.P-9 nor the writer of document Radheshyam Kaushik and non-examination of these witnesses has not been explained by plaintiff. 14. On the contrary, plaintiff in his statement recorded before the trial Court admitted that he made statement before the Sub- 10 Divisional Officer (R) Kota that he had purchased suit land for Rs.5,000/-. Vidhanand Singh (PW-2) has stated in para-7 of his cross-examination before trial Court that there was transaction of Rs.5,000/- between plaintiff and defendant and based thereon, said rectification deed was executed. Perusal of order dated 18.7.2012 (Ex.D-6) shows that there is mention that non-applicant therein i.e. plaintiff herein, in his reply claimed to have purchased the suit land for Rs.5,000/-. Thus, it is apparent that the statement of plaintiff/appellant herein is contrary to pleadings and evidence, especially to rectification deed Ex.P-9, which creates doubt whether Ex.P-9 is a rectification deed or agreement to sell. 15. That apart, admittedly rectification deed, Ex.P-9, is not a registered document and its execution is also denied by the defendants. As per Sections 17 of the Registration Act read with Section 54 of the Transfer of Property Act 1882, if a document creates a new right in immovable property worth Rs.100/- or more, it must be registered. Sections 17 of the Registration Act clearly states that unregistered documents required to be registered are inadmissible in evidence for the purpose of conveying title or completing a sale transaction. Although the Court can look into said documents for a collateral purpose as per proviso appended to Section 49 of the Registration Act. Hence, once it is found that a document 11 is not a registered document, ownership cannot pass under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act. 16. In the case of Rana Vidya Bhushan Singh Vs. Ratiram, reported in 1969 (1) UJ 86 (SC), Hon’ble Supreme Court has laid down thus: "A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. 17. In case of Bajaj Auto Limited vs. Behari Lal Kohli reported in AIR 1989 SC 1806 , Hon’ble Supreme Court observed that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. In case of K.R.Saha and Sons Pvt. Ltd. Vs. Development Consultant, reported in (2008) 8 SCC 564, Hon’ble Supreme Court with regard to admissibility of unregistered document, has held as under : 1. A document required to be registered, if unregistered, is not admissible into evidence under Section 49 of the Registration Act. 12 2. Such unregistered document can be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which, the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, any right, title or interest in immovable property of value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.” 18. In case of Avinash Kumar Chouhan Vs. Vijay Krishna Mishra reported in (2009) 2 SCC 532, Hon’ble Supreme Court has emphatically held that an unstamped or insufficiently stamped document which is also unregistered though required to be registered cannot be admitted in evidence for any purpose whatsoever. 19. Recently, in case of Vinod Infra Developers Ltd. vs. Mahaver Lunia and others, reported in 2025 SCC Online SC 1208, Hon’ble Supreme Court after referring the provisions of Section 17 and 49 of the Registration Act, and its earlier decision on the subject, has held in Para 9.4 thus:- “9.4…. Accordingly, it is abuduntly clear that the unregistered document to sell dated 24.05.2014 cannot, under any circumstance, create or convey any right, title or interest in favour of respondent No.1 under Section 54 of the Transfer of Property Act, 1882….” 20. In case at hand, it is not a collateral purpose but the plaintiff is seeking for a declaration and temporary injunction on the 13 basis of said rectification deed Ex.P-9, which is an unregistered document and being so, by virtue of Sections 17 & 49 of the Registration Act, rectification deed, Ex.P-9, is per se inadmissible in evidence for any purpose of claiming title. Hence, based on such document, appellant is not entitled to relief of declaration of title and consequently, he is also not entitled for decree of permanent injunction against true owner or title holder. More so, when claim based on such unregistered document is made by plaintiff after the death of its executant i.e. father of defendant No.1. 21. Though, plaintiff has produced kishtbandi khatoni (Ex.P-10), which is issued in the year 2010-11, in which he has been shown to be recorded owner of the suit land. However, the Sub-Divisional Officer (R) vide order dated 18.7.2012 while allowing appeal preferred by defendant No.1 against the order dated 24.8.2011 passed by Tahsildar Kota rejecting application of defendant No.1 for recording the suit land in his name and granting possession, has held that recording of name of plaintiff in record in the year 2010-11 is without permission of the Court and ignoring the fact that name of defendant No.1 is already existing in records as owner of the suit land. This finding of the Sub-Divisional Officer has not been further challenged by plaintiff and thus, kishtbandi 14 khatoni (Ex.P-10) issued in the name of plaintiff lost significance. 22. Further, it is well settled that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. In case at hand, the way in which transfer is made in favour of plaintiff does not convey title and does not amount to transfer, nor can it be recognized or valid mode of transfer of immovable property. Therefore, mere mutation of name of plaintiff based on said rectification deed, which itself is inadmissible in evidence, would not confer any title on plaintiff because mutation entry is not a document of title and it is made for fiscal purposes only. In case of Corporation of the City of Bangalore vs. M. Papaiah and another, reported in (1989) 3 SCC 612, Hon’ble Supreme Court has observed thus;- “5…..It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law…...” In case of Guru Amarjit Singh vs. Rattan Chand and others, reported in (1993) 4 SCC 349, the Hon’ble Supreme Court has observed thus:- “2……. It is settled law that entries in the Jamabandi are not proof of title… 15 23. Now coming to the submission of learned counsel for appellants that plaintiff has been throughout in possession of the suit property. Both the Courts below have held rectification deed, Ex.P-9, to have not been admissible in evidence being unregistered document, therefore, the status of plaintiff/appellant is of a person in unlawful possession of the suit property. In case of Padhiyar Prahladji Chenaji (deceased) through Lrs vs. Maniben Jagmalbhai (deceased) through Lrs and others, reported in (2022) 12 SCC 128, Hon’ble Supreme Court has observed thus:- “18. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff. Assuming for the sake of argument that the plaintiff is found to be in possession, in that case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and the defendant No.1 is held to be the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the plaintiff may succeed in getting the injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a 16 situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected. 19. In the present case, as observed herein above and it is not in dispute that the suit filed by the plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the defendant No.1 has been believed and thereby defendant No.1 is held to be the true and absolute owner of the suit land in question. The judgment and decree passed by the trial court in so far as refusing to grant the relief for cancellation of the registered sale deed and declaration has attained finality. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 – the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. 23.Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the 17 defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the “lawful possession” of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.” 24. In second appeal the High Court can interfere with the judgment and decree passed by the subordinate Courts only on a question of law much less substantial question of law. The findings of fact recorded by the Courts below are not liable to be interfered with unless the same are perverse. In the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, reported in (1999) 3 SCC 722, the Hon’ble Supreme Court has held as under: 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 has given satisfactory reasons for doing so. In a case where from 18 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 or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 25.In the matter of Vishwanath Agrawal S/o Sitaram Agrawal v. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 Hon’ble Supreme Court has held that the concurrent findings recorded by Courts below cannot be disturbed until and unless they are perverse or contrary to law. Relevant portion of the said judicial pronouncement reads as under:- “37.... High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure.” 19 26.In case of Adiveppa & ors vs. Bhimappa & ors, reported (2017) 9 SCC 586 the Hon’ble Supreme Court has observed and held as under: "17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court. 18. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court." 27. Juxtaposing the legal position with the factual matrix of the case, as discussed above, it is clear like a noon day that no fault can be found with the judgment and decree delivered by the learned trial court and the learned first appellate court by dismissing the suit and the appeal filed by plaintiff/appellant herein. The concurrent findings recorded by both the Courts that plaintiff failed to prove his case in relation to suit property, are based on proper appreciation and assessment of oral and 20 documentary evidence on record which do not suffer from any perversity or material irregularity warranting interference by this Court. These findings are neither against the pleadings or evidence nor contrary to any provision of law. No perversity could be pointed out by the counsel for appellant. Therefore, in the considered opinion of this Court, no substantial question of law is involved in this appeal. 28.In the result, this second appeal being devoid of any substance is liable to be and is hereby dismissed as such at the admission stage itself. No order as to costs. 29.Decree be drawn accordingly. Sd/- (Parth Prateem Sahu) Judge roshan/-