2025:CGHC:59584 NAFR Reserved on : 20.08.2025 Delivered on : 08.12.2025 HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 285 of 2005 1 - Delete (Rajan Ram) (Died) Honble Court Order Dated 06/03/2024. 2 - Munshi Ram Alias Muneshwar, S/o Shri Wakeel Ram, Aged About 45 Years R/o Village Lahpatra, Tah. Ambikapur District Surguja Chhattisgarh. 3 - Sajan Ram S/o Late Shivaram, Aged About 42 Years R/o Village Lahpatra, Tah. Ambikapur District Surguja Chhattisgarh. 4 - Babulal S/o Late Shivaram, Aged About 35 Years R/o Village Lahpatra, Tah. Ambikapur District Surguja Chhattisgarh. 5 - Deleted (Smt Durga Bai) (Died) Honble Court Order Dated 06/03/2024 6 - Ramnaresh, S/o Late Kanshiram, Aged About 10 Years (Minor) Through Natural Guardian Mother Smt. Durga Bai (Appellant No. 5). R/o Village Lahpatra, Tah. Ambikapur District Surguja Chhattisgarh. 7 - Deleted (Bikul Ram ) (Died) Honble Court Order Dated 06/03/2024 ... Appellant(s) versus 1 - Deleted ( Shobhit Ram) (Died) Honble Court Order Dated 06/03/2024 1.1 - A. Smt. Fulbasiya Rajwade W/o Late Shobhit Ram, Aged About 72 Years R/o Village Lahpatra, Tahsil Lakhanpur, District Surguja Chhattisgarh. 1.2 - B. Surendra Prasad Rajwade, S/o Late Shobhit Ram Aged About 45 Years R/o Village Lahpatra, Tahsil Lakhanpur, District Surguja Chhattisgarh. Page 2 of 15 1.3 - C. Namik Chand S/o Late Shobhit Ram, Aged About 38 Years R/o Village Lahpatra, Tahsil Lakhanpur, District Surguja Chhattisgarh. 2 - Budhan Ram, S/o Jangi Ram, Aged About 50 Years R/o Village Lahpatra, P.S. Lakhanpur, Tah. Ambikapur District Surguja Chhattisgarh. 3 - State Of Chhattisgarh Through Collector, District : Surguja (Ambikapur), Chhattisgarh ... Respondent(s) For Appellants : Mr. Raj Kumar Pali, Advocate For Res.1.1 to 2 : Mr. Neeraj Mehta, Mr. Shashi Bhushan Tiwari, Advocates. For State : Mr. Aman Tamboli, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT 1. This is plaintiffs second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 20.09.2004 passed by the learned First Additional District Judge, Ambikapur (C.G.) in Civil Appeal No.7-A/2004 affirming the judgment and decree dated 17.01.2004 passed by the Fifth Civil Judge, Class-II, Ambikapur (C.G.) in Civil Suit No. 113A/2003 whereby the suit filed by the plaintiffs has been dismissed. 2. The parties to this appeal shall be referred to hereinafter as per their description in the civil suit before the trial Court. 3. This appeal has been admitted by this Court on 31.07.2024 on the following substantial questions of law:- (i) Whether, finding recorded by the First Appellate Court that, since all the legal heirs of Mechram have not been impleaded in civil suit as party either plaintiff or defendant, therefore, share of suit land cannot be divided between the parties, is perverse and illegal? (ii) Whether the First Appellate Court has erred in law in holding that, though Jangi got his share in partition, despite that he is entitled to get share of suit land mentioned in Schedule ‘A’ of the plaint after death of his father Prasad? 4. The brief facts of the case, as pleaded in the plaint, are that the plaintiffs instituted a civil suit seeking declaration of title and permanent injunction in respect of the land situated at Village Lahaptara, Tahsil Ambikapur, as described in Schedule–A (hereinafter referred to as “the suit land”). It is the case of the plaintiffs that the parties are members of the same family. The father of defendants No. 1 and 2 and the great-grandfather of the plaintiffs were brothers, both being sons of Late Prasad. Late Prasad had acquired the suit land described in Schedule-A and the land described in Schedule–B prior to the Surguja Settlement. He had three sons, namely, Mech Ram, Jangi and Mohan. It is further pleaded that before the Settlement, Jangi Ram demanded his separate share, upon which Late Prasad allotted to him the land described in Schedule “B” and allocated the suit land to Mech Ram and Mohan. Pursuant to this family arrangement, Jangi obtained patta in his own name for the land in Schedule–B, whereas the suit land continued to stand in the name of Late Prasad. Late Prasad resided with his sons Mech Ram and Mohan. During Surguja Settlement, the land described in Schedule–B was recorded in the name of Jangi. It has been further pleaded that Mohan died issueless about 45 years ago, Late Prasad died about 25 years ago, Mech Ram passed away about 15 years ago, and Jangi died approximately 10 years ago. After the demise of Mohan and Mech Ram, the legal heirs of Mech Ram the present plaintiffs continued in peaceful possession of the suit land, and no dispute arose till the year 1994. In 1994, the defendants mutated their names over the suit land by fraudulent means and filed an application for partition before the Naib Tehsildar, Ambikapur. The plaintiffs filed a detailed reply and objection, raising the issue of title and seeking postponement of the partition proceedings for three months. The Naib Tehsildar, however, rejected the request and on 30.12.1996 passed an order directing partition of the suit land. The plaintiffs filed a review against the said order before the Commissioner, which is still pending. Aggrieved by the order of the Naib Tehsildar, the plaintiffs have instituted the present suit seeking declaration of title and permanent injunction. 5. Defendants No. 1 and 2 filed their written statement and contested the suit, denying the allegations made in the plaint. It has been contended that the suit land belonged to Late Prasad and, being ancestral property, they are equally entitled to a share therein. They have further contended that their names have been duly recorded in the revenue records following proper procedure, and therefore, the order passed by the Tehsildar is legal and valid and cannot be challenged before a Civil Court. According to them, the plaintiffs are not entitled to any relief of permanent injunction, and the suit deserves to be dismissed. Defendant No. 3 (State) has not filed any reply to the suit. 6. The learned trial Court on the pleadings of the parties has framed as many as 11 issues. Issue No. 1, 6, 7 and 10 are relevant, therefore, they are extracted below:- 1- D;k ifjf’k”V Þvß dh okn Hkwfe Lo0 izlkn us vius nks vU; iq= espjke ,oa eksgu dks fgLls esa ns fn;k Fkk rFkk Lo;a muds lkFk jgus yxk Fkk\ 6- D;k ifjf’k”V Þvß dh okn Hkwfe ij izfroknh dz0 1 ,oa 2 dks dksbZ LoRo ,oa vkf/kiR; ughsa gS\ 7- D;k ifjf’k”V Þvß dh okn Hkwfe ij izfroknh dz0 1 ,oa 2 dkfct ugha gS\ 10- D;k izfroknh dz0 1 ,oa 2 ds firk Lo0 taxh] us ljxqtk LvsV losZ lsVyesaV ds iwoZ gh vius firk Lo0 izlkn ls caVokjk djkdj caVokjh esa py ,oa vpy] laifRr lsa caVokjk ls vyx gks x;k Fkk\ 7. The plaintiffs to substantiate their case have examined Muneshwar as PW/1, Aashambhar Ram as PW/2 and Shivcharan Ram as PW/3 and exhibited documents Sarguja State Settlement 1954-55 (Ex.P/1), Settlement paper in the name of Jangi (Ex.P/2), Adhikarabhilekh in the name of Prasad (Ex.P/3), Adhikarabhilekh in the name of Jangi (Ex.P/4), copy of statement of DW/1 before the Tahsildar (Ex.P/5), Copy of statement of DW/2 before the Tahsildar (Ex.P/6). 8. The defendants to substantiate their case have examined Ramjatan Rajwade as DW/1, Shobhit Ram as DW/2 and did not exhibit any document. Page 6 of 15 9. Upon appreciation of the oral and documentary evidence adduced by the parties, learned trial Court by its judgment and decree dated 17.01.2004 dismissed the suit and held that the plaintiffs have failed to establish their case, as such, the suit is dismissed. Learned trial Court while dismissing the suit has recorded its finding with regard to issue Nos. 1,2,10 and 11 that before settlement the suit land was government land though Late Prasad may be in possession of the suit property and land described in Schedule-B but he has no right to partition the said property and the suit land after settlement has been recorded in the name of Late Prasad and the property described in Schedule-B has been recorded in the name of Jangi, but has recorded its finding that it is not proved that Prasad has partitioned the property. Accordingly, it has answered the issue Nos. 1,2,10 and 11 against the plaintiffs. The learned trial Court while deciding the issue Nos. 4 and 5 has recorded its finding that the proceeding of the Revenue Authorities is legal and justified. The trial Court has also recorded its finding that the settlement was not challenged by the plaintiffs within the time period and the evidence adduced by the plaintiffs regarding the partition of property in the name of Mech Ram and Mohan as described in Schedule -A has not been proved by sufficient evidence brought on record. Accordingly, it has dismissed the suit. 10. Being aggrieved by the dismissal of suit the plaintiffs preferred first appeal under Section 96 of Civil Procedure Code on 12.02.2004 before the Learned First Additional District Judge, Sarguja which was registered as Civil Appeal No. 7A/2004. The main contention of the plaintiffs in the appeal was that the learned trial Court has committed grave error in dismissing the suit. Learned Trial Court has made a significant legal error in not appreciating Issues No. 1, 2, 10, and 11 properly. At the time of deciding these issues, instead of considering the truthfulness of the case, the learned Trial Court examined evidence separately, whereas all the evidence related to the disputed facts should have been considered collectively and then a finding should have been recorded. The learned Trial Court has further committed a grave error in holding that before the settlement, the plaintiffs could not have been the rightful owner of the land. In fact, considering the historical background and proper interpretation of the law, it is clear that a person in continuous possession of State land has the right to claim it until he is dispossessed. It has also been contended that the plaintiffs have proved their case by leading cogent evidence that Jangi has already taken his share of land and Late Prasad being head of family has authority to partition the land, as such, learned trial Court has erred in interpreting the rights of members of the joint Hindu Family, therefore, would pray for setting aside the judgment and decree passed by the learned trial Court. 11. Learned first Appellate Court after re-appreciating the evidence and materials on record came to conclusion that the plaintiffs have failed to prove their case and dismissed the appeal. Being aggrieved with the judgment and decree passed by the 1st Appellate Court, the plaintiffs have filed present Second appeal mainly contending that both the courts below have erred in giving finding that there was no partition ignoring the fact that the defendants have failed to prove how they came in possession of the land in Schedule B earlier to the Surguja Settlement therefore, the finding recorded by both the courts below are perverse and liable to be quashed and would pray for allowing the appeal. The appeal has been admitted by this Court on the substantial question of law as aforesaid. 12. Learned counsel for the appellants would submit that from the evidence of the independent witness PW/2 Aashambhar Ram it is clear that Prasad was doing agriculture work on entire property and thereafter, due to some family dispute Jangi had taken his share in the property. Further, PW/3 Shivcharan (the Patwari) who was witness to Sarguja State Settlement and family partition that initially Prasad had 24 acres of land and at the time of settlement proceeding out of 24 acres, 8 acres was recorded in the name of Jangi and 16 acres of land recorded in the name of Prasad. Therefore, the concurrent finding given by both the courts below that the plaintiffs have failed to establish their case is perverse and deserves to be set aside and would pray for allowing the appeal. 13. On the other hand, learned counsel for the respondents would submit that the suit land is a property belonging to Late Prasad, and therefore, the respondents, being legal heirs, have an equal share therein. It is contended that during the revenue proceedings, the names of the defendants were duly recorded in accordance with law after following the due procedure, and the order passed by the Naib Tehsildar is legal, valid and binding upon the parties. It is further argued that only ancestral or joint family property is capable of partition, the suit property prior to the settlement was neither ancestral property nor property of the plaintiffs, therefore, question of partition does not arise. Therefore, the plaintiffs are not entitled to any decree of declaration or permanent injunction and would pray for dismissal of the appeal. 14. I have heard learned counsel for the parties and perused the record. Finding on substantial question of law No. (i). 15. The learned first appellate Court in paragraph 20 of the judgment has recorded its finding that the plaintiffs and defendants are governed by Hindu Succession Act, 1956 and at the relevant time mother of plaintiff-Sajan Ram and Mech Ram had 3 sons and 5 daughters but female members have not been impleaded as party to the suit. As such, no declaration over the suit property of the plaintiffs can be directed. This finding is perverse and contrary to the law as the daughters at the relevant time in the year 2000 when the suit was filed were not co-parcenors in the Hindu Family property like son. This preposition has been inserted in the year 2005 in view of the Hindu Succession (Amendment) Act, 2005. As such, at the relevant time, the daughters were not necessary party. So far as, mother of Sajan Ram is concerned, she being the widow of Shivaram can also very well claim her share if the suit is decreed in favour of the plaintiffs or the appellate Court can very well direct to implead them as party to the case. As such, the finding of the learned appellate Court since all the legal heirs of Mechram have not been impleaded in the suit as party either plaintiff or defendant therefore, share of the suit cannot be divided between the party, is illegal and perverse. 16. Thus, the substantial question of law framed by this Court deserves to be answered in favour of the appellants and against the respondents. Findings on substantial question of law No. (ii) 17. To appreciate the substantial question of law this Court has to briefly examine the evidence on record by the parties. The plaintiffs witness Bhuneshwar (PW/1) in paragraph 6 has stated that Prasad was having 24 Acres of land, out of which 8 Acre land was given to Jangi and 16 Acre was given to Mechram and Mohan and also stated that before the Tahsildar they were informed that Bhukhan and Shobhit have no right over the suit property and no intimation regarding partition and mutation was given to them and Exhibited the certified copy of Sarguja Settlement which was recorded in the name of Prasad EX.P/1 and Ex.P/2 which was recorded in the name of Jangi. The said witness was cross-examined by the defendants but the fact of non-issuance of notice or intimation to the plaintiffs about the proceedings before the Tahsildar remained un-rebutted. Shiv Charan Ram who retired as Patwari (PW/3) in examination-in- chief has stated that in the year 1937-38 when measurement for settlement was done then the land which was given to Jangi in the partition has been recorded in the name of Jangi while preparing the settlement records. He has also stated that 8 Acre land was recorded in the name of Jangi and 16 Acre was recorded in the name of Prasad. The said witness was extensively cross-examined by the defendants wherein he has admitted that the person who is paying rent will be the owner of the land and he was doing agriculture work on it. He has stated that after paying the rent only the person can cultivate the land. The witness has also stated in the cross-examination that an oral partition was taken and at that time no written partition was taken place in the family as there was no dispute. He has admitted that at the time of oral partition he was not present there but he has heard about the partition. The defendants witness Ramjatan Rajwade (DW/1) in examination in chief has reiterated the facts mentioned in the written statement but in the cross-examination he has admitted that when Jangi was separated from the house, he was a small kid. He has admitted that the Prasad has given separate land and also admitted that the land which has been given to Jangi Ram by Prasad, the settlement has been recorded for that land. He voluntarily stated that no partition has been taken place. When the witness was confronted with the statement recorded before the Tahsildar Ex.P/5 and asked which statement is correct as he has stated before the Tahsildar that he is not aware from where they have obtained the land, whereas in the deposition statement before the Court, he has stated that the suit land is self acquired property. The witness has stated that the statement which has been given before the Tahsildar and the statement given before the Civil Court both are correct. The other witness Shobhit Ram DW/2 in examination in chief has reiterated the stand taken in the written statement and in the cross-examination he has admitted that he has not moved any application before the Revenue Authorities for mutating his name. 18. From the evidence brought on record it is quite vivid that the partition has already been taken place and the names of owner have been recorded in their respective properties described in Schedule A and B in the year 1955-56 which was never challenged by the defendants and without setting aside that settlement the defendants have moved an application for partition. The evidence brought on record clearly spells out that no notice was given to the plaintiffs before the Tahsildar and in fact the plaintiffs in their plaint have taken a very specific stand that no notice before the mutation of the name of defendants were recorded. This has been proved by the plaintiffs through their evidence which remained unrebutted and even no evidence was brought by the defendants to dislodge the factum of issuance of notice before mutation. Thus, it is quite vivid that no notice was given by the Tahsildar before mutating the name of defendants. Thus, mutating the name of defendants by Naib- Tahsildar is illegal and against the provisions of Section 115 and 116 of the Land Revenue Code which are extracted below: 115. Correction of wrong entry in khasra and any other land records by superior officers. - If any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice. 116. Disputes regarding entry in khasra or in any other land records - (1) If any person is aggrieved by an entry made in the land records prepared under Section 114 in respect of matters other than those referred to in Section 108, he shall apply to the Tahsildar for its correction within one year of the date of such entry. (2) The Tahsildar shall, after making such enquiry as he may deed fit, pass necessary orders in the matter. 19. Thus, the order passed by the Tahsildar mutating the name of the defendants is illegal and the learned first appellate Court has erred in law in holding that though Jangi got his share in the partition despite that he is entitled to get share of the suit land mentioned in the Schedule A of the plaint after death of his father Prasad and this finding is perverse and contrary to the evidence, material on record. It is well settled position of law that where the finding is perverse, this Court while hearing second appeal can very well interfere in the finding in view of judgment of the Hon’ble Supreme Court in case of Damodar Lal vs. Sohan Devi {2016 (3) SCC 78} wherein Hon’ble Supreme Court has held as under :- 8.‘Perversity’ has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. 9. In Krishnan v. Backiam and another[1], it has been held at paragraph-11 that: “11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. …” 12.Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. 20. Thus the substantial question of law No. 2 deserves to be answered in favour of the plaintiffs by recording its finding that the learned first appellate Court has committed legality despite holding that Jangi got his share in the partition, still he is entitled to get share in the suit land mentioned in Schedule A of the plaint after death of his father. 21. Accordingly, all the substantial questions of law framed by this Court are answered in favour of the appellants and consequently appeal deserves to be allowed and accordingly it is allowed and decree of declaration that the plaintiffs are title holder of the suit property described in Schedule A and defendants No. 1 and 2 have no right and they are restrained from interference in peaceful possession of the plaintiffs either in person or though their agent. No order as to costs. 22. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Deshmukh KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.12.08 19:04:15 +0530