1 2025:CGHC:48367 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 458 of 2015 1 - Sanirudh S/o Mahavir Aged About 35 Years 2 - Mst. Bhagwati W/o Roopnarayan Aged About 60 Years 3 - Krishna Yadav S/o Roopnarayan Aged About 38 Years 4 - Anirudh S/o Mahavir Aged About 40 Years 5 - Sanjay S/o Mahavir Aged About 25 Years All by Caste- Ahir, R/o Village Dangari, P.S. And Tahsil - Bagicha, District Jashpur Chhattisgarh Civil And Revenue District Jashpur Chhattisgarh. --- Appellants versus 1 - Roopnarayan S/o Baijnath Aged About 80 Years R/o Village Dangari, P.S. And Tahsil - Bagicha, District Jashpur Chhattisgarh 2 - Smt. Putiya W/o Dhandayal Aged About 45 Years R/o Village Sulesa, P.S. And Tahsil Bagicha, District Jashpur Chhattisgarh 3 - Ayodhya S/o Jainarayan Aged About 40 Years 4 - Sirpat S/o Jainarayan Aged About 35 Years 5 - Ramprasad S/o Jainarayan Aged About 32 Years 6 - Lali D/o Jainarayan Aged About 28 Years No.3 to 6 all are R/o Village Dangari, Tahsil Bagicha, Distt. Jashpur Chhattisgarh 7 - The State Of Chhattisgarh, Through : District Collector Jashpur Nagar, District Jashpur Chhattisgarh. --- Respondents ____________________________________________________________ For Appellants : Mr. Divyanand Patel, Advocate For Respondent No.1 & 2 : Mr. Aman Upadhyay, Advocate on behalf of BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.10.14 11:29:19 +0530 2 Mr. Sushil Dubey, Advocate For Respondent No.7/State : Mr. Kishan Sahu, Dy.G.A Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 19/09/2025 1. This second appeal U/s.100 of C.P.C. is filed by appellants/plaintiffs questioning the legality and sustainability of the impugned judgment and decree dated 08.07.2015, passed in Civil Appeal No.12-A/2014, whereby, learned Additional District Judge, Jashpur Nagar, District – Jashpur (C.G.) dismissed the appeal filed by appellants/plaintiffs, upholding the judgment and decree dated 24.01.2014, in Civil Suit No.26-A/2012 wherein learned Civil Judge Class -2, Bagicha, District – Jashpur dismissed the suit of appellants/plaintiffs. 2. Facts relevant for disposal of this appeal are that plaintiffs/appellants have filed a civil suit for declaration of title, declaring the sale deed dated 18.10.2012 to be null and void and to declare permanent possession of plaintiffs on the suit land on the ground that parties to the civil suit are the legal heirs of Bajnath. Bajnath was having three sons Mahavir, Jainarayan and Roop Narayan. Roopnarayan is survived by his widow Bhagwati and son Krishna. Defendant No.3, Jainarayan died during pendency of first appeal and was substituted by his legal representative son Ayodhya, Sirpat, Ram Prasad and Lali. Parties to the suit were having ancestral property at village Dangari, Tahsil – Bagicha, District- Jashpur bearing Kh. No.90/1, measuring area 1.202 hectares of land. Said land was purchased by Baijnath, ancestors of the parties to the suit. Civil suit was filed by legal 3 representative of Mahavir and Roopnarayan pleading that defendant No.1 Roop Narayan has executed an agreement dated 30.12.2000 for deleting his name from ancestor property and accepted the other land bearing Kh.No.1080/2 and since the date of execution of agreement, right and title of defendant No.1 has been extinguished from the land bearing Kh. No.90/1 (ancestral property). After execution of agreement, giving up his right over the land bearing Kh. No.90/1, defendant No.1 had sold part of land from Kh. No.90/1 measuring 0.99 acres on 18.10.2012 in favour of defendant No.2 by registered sale deed. When plaintiff came to know about sale transaction then application for staying mutation was filed before the Naib Tahsildar. They have also pleaded that sale deed was executed on the pretext that sale consideration would be paid after getting possession of land, subject matter of sale deed. 3. Defendant No.1, denied the pleadings made in the suit and further pleaded that he has not executed the agreement dated 30.12.2000 (Ex.P-2) nor has accepted other land bearing Kh. No.1080/2. Defendant No.1 was having possession of the land, subject matter of civil suit and after execution of sale deed in favour of defendant No.2, possession was handed over to the defendant No.2 as he got the title based on the sale deed. Defendant No.2 was bonafide purchaser. It is also pleaded that on the date of execution of sale deed, name of defendant No.1 was mentioned in the revenue records. 4. Defendant No.2 also filed reply to the suit denying the pleadings made therein. In furtherance to the pleadings made in the written statement filed by defendant No.1, it is pleaded that after execution of sale deed 4 of the land bearing Kh. No.90/1 measuring 0.99 acres, defendant No.1 has handed over possession to defendant No.2. It is pleaded that based on the sale deed he has filed an application for mutation before the Naib Tahsildar, which is pending. He contended that upon getting the revenue documents from Patwari and giving assurance by defendant No.1 that he is owner of property which he is intending to sale, defendant No.2 has purchased the property, subject matter of suit. Sale consideration was also paid to defendant No.1 and prayed for dismissal of suit. 5. Learned trial Court based on the pleadings made by respective parties framed as many as five issues for consideration including the issue as to ‘whether the plaintiffs are having title over the land bearing Kh. No.90/1 measuring 0.99 acres (disputed land) and whether the sale deed executed dated 18.10.2012 is null and void’, has dismissed the suit deciding both the issues in negative. The judgment and decree passed by learned trial Court was challenged in an appeal U/s. 96 of the C.P.C.. Learned First Appellate Court upon hearing both the sides and after appreciating the documentary and oral evidence brought in by respective parties dismissed the appeal by the impugned judgment and decree. 6. Learned counsel for appellant would submit that learned both the Courts below erred in not considering the documents (Ex.P-2) to be validly executed documents between Roop Narayan and Mahavir on 30.12.2000 overlooking the signatures of parties therein. He also contended that learned Courts below failed to consider that under family settlement (Ex.P-2), other land was given to defendant No.1 5 against share of defendant No.1 of land bearing Kh. No.90/1. Courts below have not taken into consideration that sale deed though was executed and registered, however, sale consideration was not paid. As the sale consideration was not paid, the Courts below ought to have declared the sale deed dated 18.10.2012 (Ex.P-3) to be null and void. Learned counsel for appellants lastly submitted that defendant No.1 could not have sold the disputed land in favour of defendant No.2 as it was a joint family property. 7. Learned counsel for respondents No.1 and 2 would oppose the submission of learned counsel for appellants and would submit that learned both the Courts below upon appreciating the documentary and oral evidence have rightly dismissed the suit as also the appeal filed by the appellants therein. He contended that sale deed (Ex.P-2) has been validly executed by defendant No.1 in favour of defendant No.2 after receiving the sale consideration as agreed upon. 8. I have heard learned counsel for parties and perused records of both the Courts below. 9. Perusal of contents of document (Ex.P-2), relied upon by plaintiffs would show that there was partition amongst sons of late Baijnath of land bearing Kh. No.90/1 measuring 1.202 hectares and each of them have got about 0.99 acres of land because in the document (Ex.P-2), it is mentioned that other land is being given to defendant No.1 in exchange. From the said contents of the documents and acceptance made by plaintiffs that against part of land in possession of defendant No.1 of Kh. No.90/1, measuring 0.99 acres, they intended to give other piece of land description of which is mentioned therein. From the 6 pleadings in the plaint that they have given other land to defendant No.1 in exchange based on the document Ex.P-2 is itself sufficient to infer that there was partition of ancestral property between three brothers, therefore, submission of learned counsel for appellants that there was no partition, and the land subject matter of sale deed was a joint family property, is not sustainable and acceptable. The learned Courts below have not committed any error in recording a finding that right and title of defendant No.1 has not been extinguished from 30.12.2000 as valid execution of agreement has not been proved by plaintiffs. 10. Learned trial Court in para-10 of judgment and decree passed in civil suit has considered that from the document (Ex.P-2) it cannot be inferred that the said document is of partition or of family settlement based on the contents as discussed above. The said finding cannot be said to be erroneous in view of discussion made in preceding paragraph with regard to contents of document (Ex.P-2). Trial Court has also considered that plaintiffs have not pleaded and asked for partition of land bearing Kh. No.90/1 recorded in name of Baijnath but from pleadings it is appearing that partition was earlier taken place between brothers/son of late Baijnath. Defendant No.1 in his evidence and pleadings have admitted that he has received sale consideration and same has also been pleaded and stated by defendant No.2, purchaser that he has paid the sale consideration as agreed between the parties. 11. Learned trial Court upon appreciating of evidence have recorded a finding that plaintiffs failed to prove their case and dismissed the suit, 7 which is affirmed by learned First Appellate Court. Thus the finding recorded by learned trial Court as well as by the First Appellate court, is a finding of fact, based on evidence available on record, which cannot be interfered in second appeal filed U/s. 100 of C.P.C.. 12. Hon’ble Supreme Court in case of Navaneethammal vs. Arjuna Chetty reported in AIR 1996 SC 3521, has held that the interference with the concurrent findings of the Courts below by the High Court under Section 100 of CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re- appreciate the evidence just to replace the findings of the Lower Court. Even assuming that another view is possible on re-appreciation 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. 13. In the case of State of Rajasthan and Others vs. Shiv Dayal and Another, Reported in (2019) 8 SCC 637, the Hon’ble Supreme Court has observed in para Nos. 14, 15 & 16 as under:- “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 8 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. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)” 14. The Hon’ble Supreme Court in the case of Sukhbiri Devi and Others vs. Union of India and Others reported in 2022 SCC OnLine SC 1322 while reiterating the view taken by the Apex Court in the case of Shiv Dayal and Another (supra), has held that interference with the concurrent findings in subsequent appeal can be made if it is pointed out that it has been passed dehors the pleadings or based on no evidence or based on misreading of material evidence or against the provision of law etc. 15. In the case at hand no such ground is raised and available attracting substantial question of law. Second appeal is to be admitted only when the appeal involves substantial question of law. 9 16. For the forgoing discussions and the decisions of Hon’ble Supreme Court, I do not find any infirmity or illegality in the judgment passed by the learned trial Court and upheld by learned first appellate Court. Thus, having considered the concurrent finding recorded by both the Courts below, I do not find any substantial question of law to be involved in the instant case, hence, this appeal is dismissed at the admission stage itself. 17. The Decree be drawn accordingly. 18. The parties to bear their own costs. Sd/- (Parth Prateem Sahu) Judge Balram