1 2026:CGHC:20406 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 274 of 2017 Udaya Sahakari Grih Nirman Sanstha Maryadit Through Its President Udaya Sahakari Grih Nirman Sanstha Maryadit, Jagdish Singh Maryadit, Jagdish Singh Bhamra S/o Late Swarn Singh, Aged About 67 Year R/o Sector 3 B/22-10 Udaya Nagar, Tatibandh, Raipur, Tahsil And District Raipur, Chhattisgarh., Chhattisgarh ... Appellant versus 1. Budhram Sahu S/o Shri Milau Sahu Aged About 58 Years R/o Village Hirapur, Tahsil And District Raipur, Chhattisgarh., Chhattisgarh 2. Ramdayal Sahu S/o Shri Milau Sahu, Aged About 56 Years R/o Village Hirapur, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3. Smt. Chamarin Bai Sahu D/o Shri Milau Sahu Aged About 60 Years W/o Bodhu Sahu, R/o Sarona, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 4. Pradip Singh Rajpur S/o Shri Narayan Singh Rajpur Aged About 33 Years R/o E / 4, Vinayaka Vihar, Danganiya Raipur, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.05.05 10:47:41 +0530 2 5. Vijay Kumar Tandan S/o Late Itwariram Tandan Aged About 32 Years R/o Near Jaitkhambh, Kapa, Raipur, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 6. Vikay Kumar Pandey S/o Shri Ghanshyam Prasad Pandey Aged About 35 Years R/o Rohnipuram Goal Chowk, Raipur, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 7. Sunil Kumar S/o Shri Motiram Aged About 39 Years R/o 349 Samta Colony Raipur, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Appellant : Shri Rishikant Mahobia, Advocate Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board 01.05.2026 1. By the present Second Appeal preferred under Section 100 of the Code of Civil Procedure, the appellant/plaintiff has assailed the impugned judgment and decree dated 19.01.2017 passed by the learned 8th Additional District Judge, Raipur (C.G.) in Civil Appeal No. 11-A/2012 (Udhya Sahkari Grih Nirman Sanstha vs. Budhram Sahu & Others), whereby the learned First Appellate Court has affirmed the order dated 25.01.2011 passed by the learned Trial Court in Civil Suit No. 136-A/2008, rejecting the plaint in view of the provisions enshrined under Order 7 Rule 11 of the Code of Civil Procedure. For the sake of convenience, the parties shall 3 hereinafter be referred to in accordance with their status before the learned Trial Court. 2. The appellant/plaintiff Society instituted a suit before the trial court seeking declaration and permanent injunction to the effect that the suit land bearing Khasra Nos. 626 (area 1.15 acres) and 627 (area 2.62 acres), total area 3.77 acres, originally stood in the names of Dadu and defendant No.1, who executed an irrevocable General Power of Attorney dated 21.03.1984 in favour of the plaintiff society and handed over possession. After developing the land and carving out plots, the plaintiff society, in exercise of the rights under the said power of attorney, allotted/sold the plots to its members. It is further pleaded that a sum of 1,80,780/- was ₹ paid to defendant No.1 on different dates. However, defendant Nos.1 to 3, without authority, executed a sale deed dated 30.05.2005 in favour of defendant Nos.4 to 7. Hence, a declaration is sought that the allotment/sale made by the plaintiff society in favour of its members is valid, and the sale deed dated 30.05.2005 executed by defendant Nos.1 to 3 in favour of defendant Nos.4 to 7 is illegal, without authority, and not binding upon the plaintiff society. 3. During pendency of the suit, defendant Nos. 1 to 3 preferred an application under Order 1 Rule 13 of the Code of Civil Procedure raising a preliminary objection regarding non-joinder of necessary parties and seeking dismissal of the suit on the ground of non- maintainability. 4 4. (i) Subsequently, defendant Nos. 1 to 3 and 4 to 7 filed separate applications under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint. Defendant Nos. 1 to 3 contended in the said application that, from the averments in the plaint itself, the suit is not maintainable as the plaintiff, despite seeking declaration and permanent injunction on the basis of a purported power of attorney, is not in actual possession of the suit property. It was urged that in the absence of a prayer for consequential relief of possession, the suit for mere declaration is barred under Section 34 of the Specific Relief Act. (ii) Defendant Nos. 4 to 7, in their application, contended that the plaintiff has neither pleaded nor established any title over the suit property and has merely relied upon a purported power of attorney. It was further urged that, in the absence of any ownership or subsisting right, the plaintiff has no locus to challenge the sale deeds executed in their favour or to seek declaration regarding its own alleged transactions. They also contended that no cause of action has accrued in favour of the plaintiff and that the suit is improperly valued. (iii) The plaintiff filed separate replies opposing the aforesaid applications, contending that the objections raised are misconceived and largely based on the plaint averments themselves. It was asserted that the plaintiff is in possession of the suit property, having developed the same and acted upon a registered power of attorney, and is thus competent to maintain 5 the suit. The plaintiff further contended that the plaint discloses a clear cause of action and that, for the purpose of deciding an application under Order 7 Rule 11 CPC, only the averments made in the plaint are to be considered. The objection regarding valuation and court fee was also denied, with the submission that the plaintiff is not a party to the impugned sale deeds. Accordingly, dismissal of the applications filed by the defendants under Order 7 Rule 11 CPC was prayed for. 5. After appreciating the evidence available on record, the learned trial Court by order dated 25.01.2011 has found that as per the averments made in the plaint itself, the plaintiff claims to have acquired rights over the suit land on the basis of a power of attorney and further admits to having developed the land and sold/allotted the same to its members. This, prima facie, indicates that the plaintiff was not in actual possession of the suit property on the date of institution of the suit. In such a situation, a suit seeking mere declaration, without the consequential relief of possession, is barred under Section 34 of the Specific Relief Act and is liable to be rejected under Order 7 Rule 11(d) CPC. The Court has further observed that despite the plaintiff’s own pleading regarding transactions involving substantial consideration, the suit has been valued at a nominal amount for the relief of declaration, thereby rendering the valuation improper. It is also noted that the persons in whose favour the plaintiff claims to have allotted/sold the land have not been impleaded as 6 parties, though they appear to be necessary parties to the lis. Accordingly, the learned Trial Court has held that the suit suffers from the bar of law, improper valuation, and non-joinder of necessary parties, and is therefore not maintainable. 6. Aggrieved by the said order dated 25.01.2011, the plaintiff preferred a First Appeal under Section 96 of the Code of Civil Procedure before the learned First Appellate Court. The learned First Appellate Court, on re-appreciation of the entire evidence on record, affirmed the findings recorded by the Trial Court and dismissed the appeal by the impugned judgment. Hence, the present appeal by the plaintiff. 7. (a) Learned counsel for the appellant submits that the impugned judgment passed by the learned Appellate Court as well as the order passed by the Trial Court is contrary to the facts and settled principles of law. It is contended that both the Courts have erred in holding that the suit is barred under Section 34 of the Specific Relief Act, as the suit was not for mere declaration but also for consequential relief of permanent injunction. It is further submitted that the plaintiff society derived its right and possession over the suit property by virtue of a registered General Power of Attorney executed by defendant Nos.1 to 3, under which the society developed the land, carved out plots, and allotted the same to its members, who have raised constructions thereon. Thus, the finding that the plaintiff was not in possession is erroneous and perverse. 7 (b) It is also argued that the suit has been properly valued, as no challenge to the sale consideration or transaction has been made, and only a declaration regarding validity of allotment and non- binding nature of subsequent sale deed dated 30.05.2005 has been sought. The objection regarding non-joinder of parties is misconceived, as the members are not necessary parties and no relief has been claimed against them. Lastly, it is submitted that while deciding an application under Order 7 Rule 11 CPC, only the averments in the plaint are to be considered, and the learned Appellate Court as well as the Trial Court have exceeded their jurisdiction in going beyond the plaint. Hence, the impugned order deserves to be set aside. 8. I have heard learned counsel for the appellant, perused the material available on record. 9. A plain reading of the plaint reveals that the plaintiff has categorically pleaded that the suit land has already been sold to its members and that possession over the same is with such members as described in Schedule ‘A’. In view of such clear and unequivocal pleadings, it cannot be accepted that the plaintiff itself was in actual possession of the suit property on the date of institution of the suit. Consequently, the both Courts have rightly held that the suit, in substance, is one for declaration without seeking the necessary consequential relief of possession, and is thus hit by Section 34 of the Specific Relief Act. 10. For the sake of convenience, Section 34 of the Specific Relief Act, 8 1963 is reproduced hereinbelow :- “34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.” 11. A plain reading of the proviso to Section 34 of the Act of 1963 makes it clear that where the plaintiff is in a position to seek further consequential relief, such as possession, but omits to do so, a mere suit for declaration of title is not maintainable. Thus, the grant of declaratory relief is discretionary and is expressly barred in cases where the plaintiff, despite being able to seek complete relief, restricts the claim to declaration simplicitor. 12. Further, the contention that the plaintiff derived rights and possession on the basis of a General Power of Attorney also does not advance its case, as such a plea, in the face of its own admission regarding sale and handing over possession to 9 members, negates the claim of possession with the plaintiff. Similarly, the argument regarding proper valuation cannot be accepted, as the plaint itself discloses transactions involving consideration, yet the relief has been valued at a nominal figure, which prima facie renders the valuation improper. 13. The objection regarding non-joinder of necessary parties is also not without substance, inasmuch as the plaintiff itself claims that possession lies with the members/allottees, who have not been impleaded despite their direct interest in the subject matter of the suit. In the aforesaid situation, the submission advanced by learned counsel for the appellant does not merit acceptance. 14. Further, it cannot be said that both the Courts have travelled beyond the plaint while deciding the application under Order 7 Rule 11 CPC, as the conclusions drawn are based squarely on the averments contained in the plaint itself. 15. It would be apt to quote the provisions of Order 7 Rule 11 of the CPC, which reads thus : “Order 7 (Plaint) xxx xxx xxx xxx Rule 11. Rejection of plaint. -- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but 10 the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]” (emphasis applied) 16. From bare reading of the aforesaid provision, it is manifest that Order 7 Rule 11(d) empowers courts to reject a plaint if it appears to be barred by any law. This can include situations where the suit lacks a valid cause of action, is time-barred, or other legal prohibitions apply. The key principle is that the rejection should be based solely on the statements within the plaint without delving into external evidence or disputed facts. It is noteworthy to mention here that Order 7 Rule 11(d) is not a catch-all provision for dismissing suits lacking merit; rather, it is a procedural tool meant to streamline the judicial process by filtering out blatantly untenable claims at the earliest stage. In fact, the rejection of a plaint under this rule should be confined to the averments within 11 the plaint itself, devoid of any consideration of external evidence or disputed facts. The underlying object of Order 7 Rule 11(d) is that where if the suit is barred by limitation under this provision, the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. Looking to the aforesaid facts situation, the decision of this Court rendered in Mehul Kumar Patel & Others v Rishikesh Guptas & Others (FA No.16 of 2023 decided on 10.11.2023), relied upon by the plaintiff, would not be applicable to the facts of the present case. 17. Further, the learned First Appellate Court has also observed that the plaintiff instituted the suit seeking declaration regarding the validity of its own transactions and invalidity of the sale deed dated 30.05.2005, along with consequential relief of injunction, on the basis of a power of attorney. However, from a plain reading of the plaint, it is evident that the plaintiff acted only in the capacity of a power of attorney holder and had already transferred the suit property to its members, who are stated to be in possession thereof. In such circumstances, it has been held that the plaintiff neither acquired any independent title nor retained any subsisting legal right or character in respect of the suit property so as to maintain a suit for declaration under Section 34 of the Specific Relief Act. It has further been observed that the plaintiff was not in actual possession of the suit property and that the alleged 12 allottees, being necessary parties, were not impleaded. The suit has also been found to be improperly valued. On the aforesaid reasoning, the learned First Appellate Court has affirmed the finding of the Trial Court that the plaint was rightly rejected under Order 7 Rule 11(d) of the Code of Civil Procedure on the basis of the averments contained in the plaint itself, and that the findings do not suffer from any illegality or perversity warranting interference in second appeal. 18. The findings recorded by both the Courts are based on proper appreciation of the pleadings in plaint and are neither perverse nor contrary to law. No substantial question of law arises for consideration in the present Second Appeal. No perversity, illegality or misapplication of law has been demonstrated by the appellant so as to warrant interference in second appeal. 19. It is well settled that in a second appeal under Section 100 CPC, interference is permissible only when a substantial question of law arises. In the present case, the findings recorded by the Trial Court as well as the First Appellate Court are based on proper appreciation of law as well as pleadings in the plaint, are neither perverse nor contrary to law, and do not give rise to any substantial question of law. 20. Even otherwise, the scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is extremely limited. Interference is permissible only when the appeal involves a substantial question of law. Concurrent findings of fact recorded 13 by both the Courts cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law. 21. In the present case, both the Trial Court and the First Appellate Court have concurrently recorded findings, on the basis of law, pleadings & averments made in plaint, that the appellant failed to establish their case by placing cogent and sufficient material. The appellant has failed to demonstrate any perversity, illegality, or misapplication of law in the findings so recorded. 22. It is well established that when there is a concurrent finding, unless it is found to be perverse, the Court should not ordinarily interfere with the said finding. 23. In the matter of State of Rajasthan and others Vs. Shiv Dayal and another, reported in (2019) 8 SCC 637, reiterating the settled proposition, it has been held that 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 de hors the pleadings or 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. 24. Very recently the Supreme Court in the matter of Russi Fisheries Pvt. Ltd. Vs. Bhavna Seth & Ors. in C.A. No. 109/2010 decided on 09.04.2026 has held thus at paras 31 to 35 :- 14 “31. It is settled in law that the findings of fact howsoever erroneous, cannot be reopened and disturbed in second appeal which is required to be adjudicated only upon the substantial question of law, if any, arising therein. Thus, the argument that the High Court in second appeal ought to have examined the evidence to ensure the correctness of the findings of the First Appellate Court has no legs to stand and fails. 32. Long back in 1981, three judges of this Court in the case of Bholaram Vs. Ammerchand (1981) 2 SCC 414 had ruled that even if findings of facts by courts below are wrong or grossly inexcusable that by itself would not entitle the High Court to interfere under Section 100 CPC in the absence of clear error of law. A similar view was reiterated in Madhavan Nair vs. Bhaskar Pillai (Dead) by Lrs. (2005) 10 SCC 553, wherein it has been laid down that even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. 33. In Kashibai w/o Lachiram and Another vs. Parwatibai w/o Lachiram and others (1995) 6 SCC 213, a similar proposition of law was laid down by this Court and it was held that the High Court cannot reappreciate the evidence and interfere with the findings of facts unless a substantial question of law or a question of law duly formulated is to be decided. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. 34. Similar is the situation in the case at hand. The High Court has not found any substantial question of law or a question of law worth consideration in the second appeal and, therefore, there was no occasion for it to have reappreciated the evidence so as to come to a different conclusion. 15 35. Again, in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by Lrs & Ors. AIR (2001) SC 1273, it was emphasized that the fact remains that in a second appeal, a finding of fact, even if erroneous, will not be disturbed unless it is found that it stands vitiated for want of perversity. No such case for interference has been made out in the present case.” 25. Be that as it may, the argument advanced by learned counsel for the appellant and the proposed question of law cannot be regarded as satisfying the test of being ‘substantial question of law’ within the meaning of Section 100 of CPC. . The appellants failed to raise any substantial question of law which is required under Section 100 of the CPC in. In any event, the Second Appeal did not involve any substantial question of law as contemplated under Section 100 of the CPC, no case is made out by the appellants herein. The judgments impugned passed by the learned trial Court as well as First Appellate Court are just and proper and there is no illegality and infirmity at all. 26. Accordingly, the present appeal is liable to be and is hereby dismissed at the motion stage itself. SD/- (Bibhu Datta Guru) Judge Jyoti/ Gowri