1 2025:CGHC:55238 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 95 of 2017 1 - Kamta Nath S/o Late Doulat Ram, Aged About 60 Years Caste- Satnami, R/o Village Kamta, P.S. And Tah. Navagarh, Distt. Janjgir-Champa, Chhattisgarh ...............Plaintiff. ... Appellant versus 1 - Sanat Kumar S/o Shivgopal Kurmi, Aged About 36 Years 2 - Pitambar S/o Firtu, Aged About 38 Years 3 - Visheshar S/o Firtu, Aged About 25 Years 4 - Radhabai D/o Late Bhagat, Aged About 44 Years 5 - Vinod S/o Late Bhagat, Aged About 24 Years 6 - Manoj S/o Late Bhagat, Aged About 22 Years-Champa, Chhattisgarh 7 - Manharan S/o Late Bhagat, Aged About 18 Years Respondents No. 1 to 7 are R/o Village Kamta, P.S. And Tah. Navagarh, Distt. Janjgir-Champa, Chhattisgarh 8 - Vimla D/o Late Bhagat, Aged About 25 Years W/o Bhurelal, R/o Village Kohka Bilari Tah. Pamgarh, Distt. Janjgir-Champa, Chhattisgarh, 9 - Rambha D/o Late Bhagat, Aged About 20 Years R/o Korba, Ward No.13, Transport Nagar, Korba, Tah. And Distt. Korba, Chhattisgarh 10 - Yashoda D/o Daulatram, Aged About 75 Years R/o Village Kamta, P.S. And Tah. Navagarh, Distt. Janjgir-Champa, Chhattisgarh. 11 - State of Chhattisgarh, Through Collector, Janjgir-Champa, Chhattisgarh .................Defendants. ... Respondent(s) For Appellant : Shri Ravindra Sharma, Advocate. For State : Shri Ajay Kumrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 12.11.2025 1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the appellant against the impugned judgment and decree dated 03.01.2017 passed by the District Judge, Janjgir Champa, in Civil Appeal No.2-A/2016 whereby the First Appeal filed by 2 the appellant against the judgment and decree dated 22.07.2014 passed by First Civil Judge Class-I Janjgir Champa in Civil Suit No.11- A/2009 has been dismissed and the judgment and decree of trial court has been affirmed. 2. For the sake of convenience, the status of parties shown in the Civil Suit are being taken in the present Second Appeal. 3. Relationship between the parties are admitted facts of the case. The plaintiffs and defendants No.2 to 6 are legal heirs of Daulat Ram and Firtu who were real brothers. The plaintiff and defendant No.5 Bhagat and defendant No.6 Yashoda are legal heirs of Daulat Ram. Defendant No.3 & 4 are legal heirs of Firtu. 4. The plaintiff filed a civil suit for declaration of his title over the suit land Khasra No.49/1 Area 0.78 Acre situated at village Kamta, PH No.60, Tehsil Nawagarh, District Janjgir Champa. He pleaded in the plaint that the suit land is the coparcenary property of the plaintiff & defendant No.2 to 6 and there was no partition of the same. The defendant No.1 is claiming that he purchased the suit land from defendant No.2 to 4 on 04.05.2009 and made an application before the Tehsildar Shivrinarayan for mutation of his name in the revenue records. Since the defendant No.2 to 4 had no exclusive right or title over the suit land and they have not the alienable title over it, they cannot sell the suit land to defendant No.1 and the defendant No.1 cannot acquire title by the said sale deed until he get partition of the suit land. Since the plaintiff is in possession of suit land along with his other coparcenar, he filed the suit for declaration of title over the suit land. 5. The defendant No.1 though appeared and filed his written statement denying the plaint averment, however, his written statement have not 3 been taken on record as the same was filed beyond the period of 90 days and his application for taking his written statement on record has been rejected vide order dated 09.08.2010 by the trial court and his right to file written statement was forfeited. 6. The trial court framed points for determination as to whether the plaintiff is joint owner and possession holder of the suit land along with defendant No.2 to 6 over the suit land Khasra No.49/1 Area 0.78 Acre situated at village Kamta District Janjgir Champa. 7. The plaintiff examined himself as PW-1 and in his support PW-2 Yashoda and PW-3 Kapil have been examined. He filed the documents Ex.P/1 & P/2 which are Khasra Panchshala and Kistbandi Khatauni of the suit land. The defendants have examined Sanat Kumar, DW-1, Pitambar, DW-2 and DW-3 Mohan Lal and relied upon documents Ex.D/1 to D/6 which are the copies of sale deed dated 04.05.2009, the order passed by Tehsildar Shivrinarayan and the revenue documents. 8. After appreciation of oral as well as documentary evidence led by the parties, the trial court came into conclusion that the plaintiff has failed to prove that he was the joint owner and possession holder of the suit land along with defendant No.2 to 6 and dismissed the suit of plaintiff. The First Appeal filed by the plaintiff before the District Judge, Janjgir Champa in Civil Appeal No.2-A/2016 has also been dismissed vide its judgment and decree dated 03.01.2017 holding that by the revenue records, the title of plaintiff cannot be determined and the plaintiff has not proved the revenue records in accordance with law. It was further held that earlier there was a partition between the parties and the names of defendant No.2 to 6 were recorded in the revenue records and sale in favour of defendant No.1 is rightful sale and his First 4 Appeal has also been dismissed which is under challenge in this Second Appeal. 9. Learned counsel for the appellant would submit that there is no written statement filed by the defendants to rebut the averment of the plaint and therefore the trial court ought to have passed the decree under Order 8 Rule 10 of CPC considering that pleadings of plaint have been admitted by the defendants. He would further submit that plaintiff is coparcener of the suit property along with defendant No.2 to 6 and their relationship between the parties have not been denied. In the revenue record, the names of plaintiff and defendant No.2 to 6 are jointly recorded in the revenue records of the suit land which has not been challenged by the defendants and since there was no partition between the parties, the purchaser i.e. defendant No.1 cannot get the specific property of the joint family and he cannot claim over the proper which he alleged to have purchased from defendant No.2 to 6. He would also submit that unrebutted evidence of the plaintiff has not been considered by the trial court in its proper perspective and both the courts below came into erroneous conclusion while passing the judgment and decree and thus substantial question of law is involved in this appeal for its determination. 10. I have heard the counsel for the appellant, perused the record of trial court and gone through the evidence 11. The trial court has considered the evidence produced by the plaintiff PW-1 and also considered the admission made in his cross examination. PW-1 has admitted that he is residing separately from defendants since 2-3 years back. The plaintiff’s witness No.2 Yashoda have also admitted that since 10-15 years she has not gone to suit 5 land. From perusal of document Ex.P/1&P/2 it transpires that in the year 2006-07 the suit land was recorded in the name of Dashrath, Kamta, Bhagat, Daulatram, Mohan Lal, Pitamber and Viveshar. These two documents are the true copies of revenue document, but the same has not been proved by examining the person who issued the said true copies. It is not the certified copies of revenue entries. The true copies of revenue documents are required to be proved by examining its author as has been held by the Madhya Pradesh High Court in Badriprasad & Others Vs. State of Madhya Pradesh, 2010 (3) MPJR 114. The trial court has further considered that the property of family of plaintiff and defendant No.2 to 6 were partitioned much before and plaintiff sold the property of his share to one Baiju Kewat on 01.08.1980. Thereafter, Baiju Kewat sold the said property to one Rahas Kashyap. This fact of selling the land to Baiju Kewat by the plaintiff Kamta has been admitted by him in paragraph 14 of his cross examination. Though he stated in his evidence that he along with his uncle Firtu sold the property, but he admitted that he alone got the sale deed registered in favour of Baiju Kewat and delivered possession of that land to him. 12. The defendant No.1 have stated in his evidence that he purchased the suit land from defendant No.2 to 6 and got his name mutated in the revenue records and he proved the sale deed Ex.D/1. The ownership of defendant No.2 to 6 has not been denied over the suit land. Further, in the proceeding before the Tehsildar Shivrinarayan with respect to mutation of defendant No.1, the plaintiff filed his reply and admits that partition took place between the members of joint family and defendants No.2 to 6 cannot alienate more than 0.52 Acre of land. 6 However, after recording statement of the parties, the Tehsildar has passed the order for mutation of the name of defendant No.1 on 25.02.2010. It is nowhere mentioned that the order passed by the Tehsildar Shivrinarayan has been challenged before any higher forum. Even in the present suit the plaintiff has filed the suit for declaration of his title. 13. Considering the evidence led by the parties, the trial court has held that defendant No.2 to 6 have sold the suit land to defendant No.1 which was of their share and partition had already taken place between the parties since long back and the plaintiff has already sold the land of his share to Baiju Kewat. 14. The First Appellate court was also, in concurrence with the findings recorded by the trial court, considered that the suit for only declaration of title is not maintainable when the plaintiff is not in possession of the suit property and non-suited the plaintiff relying upon the judgment passed by the Supreme Court in Vinay Krishna Garg Vs. Keshav Chandr, AIR 1993 SC 957 and Ramsharan & Others Vs. Smt. Ganga Devi, AIR 1972 SC 2685. 15. The other submission made by the counsel for the plaintiff that in absence of any written statement the courts below ought to have decreed the suit under Order 8 Rule 10 of CPC is concerned, it is necessary to take note of the provisions of Order 8 Rule 10 CPC, which reads as under: “Where any party from whom a written statement is required under rule 1 or 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in 7 relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up.” 16. From perusal of provisions of Order 8 Rule 10 CPC it transpires that when the defendants fail to present the written statement as required under Rule 1 or Rule 9 within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. In the present case, the trial court has rejected the application of the defendant No.1 filed under Section 151 CPC for taking written statement on record vide its order dated 09.08.2010 and proceeded to hear the application under Order 8 Rule (1)(a)(iii). The said application of defendant No.1 was decided on 21.04.2011 and the documents produced by the defendant No.1 was taken on record holding that there is no impediment in taking the said document on record even if right to file written statement is forfeited. The right of rebuttal to the plaintiff has also been observed and then the trial court has proceeded for recording evidence of the parties. 17. From the provisions of Order 8 Rule 10 CPC, it transpires that it is directory in nature for the reason that in the provision itself the liberty was given to the trial court that either the court shall pronounce judgment against him or “make such order in relation to the suit as it thinks fit” and while exercising the discretion of the trial court, they proceeded for recording evidence of the party and not to pass decree on the ground of non filing of the written statement by the defendants. 18. The Supreme Court in Asma Lateef & Another Vs. Shabbir Ahmad & Others, 2024 (4)SCC 696 has observed in paragraph 26 to 28 as under : “26. We have no hesitation to hold that Rule 10 is permissive in nature, enabling the trial court to exercise, in a given case, either 8 of the two alternatives open to it. Notwithstanding the alternative of proceeding to pronounce a judgment, the court still has an option not to pronounce judgment and to make such order in relation to the suit it considers fit. The verb ‘shall’ in Rule 10 [although substituted for the verb ‘may’ by the Amendment Act of 1976] does not elevate the first alternative to the status of a mandatory provision, so much so that in every case where a party from whom a written statement is invited fails to file it, the court must pronounce the judgment against him. If that were the purport, the second alternative to which ‘shall’ equally applies would be rendered otiose. 27. At this stage, we consider it apposite to take a quick look at Balraj Taneja (supra) to examine the scope of Rule 10 of Order VIII. Therein, this Court ruled that a court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII, CPC merely on the basis of the plaint, upon the failure of a defendant to file a written statement. The relevant paragraphs of the judgment are reproduced below for convenience: “29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court’s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression ‘the court may, in its discretion, require any such fact to be proved’ used in sub-rule (2) of Rule 5 of Order 8, or the expression ‘may make such order in relation to the suit as it thinks fit’ used in Rule 10 of Order 8.” No doubt this decision was rendered considering that the verb used in the provision is ‘may’, but nothing substantial turns on it. 17. What emerges from a reading of Balraj Taneja (supra), with which we wholeheartedly concur, is that only on being satisfied that there is no fact which need to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint 9 itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja (supra) also lays down the law that provision of Rule 10 of Order VIII, CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.” 19. In Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, 2012 (7) SCC 288, the Hon’ble Supreme Court held in paragraph 36 & 37 as under : “36.In Major Singh v. Rattan Singh (Dead) by LRs and others[15], it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhar v. Manikrao and another[16], it has been ruled that the 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. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors.” 20. After having gone through the pleadings of the parties and the oral as well as documentary evidence led by the parties, this court does not find any perversity. The findings recorded by the courts below are based on proper appreciation of evidence and this court does not find any substantial question of law involved in the case for its determination. 21. Accordingly, the Second Appeal is dismissed without noticing to other side. The parties shall bear their own cost. Sd/- (Ravindra Kumar Agrawal) Judge inder