1 2026:CGHC:7399 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 28 of 2017 Kailash @ Duliram S/o Shri Patiram Mahar, Aged About 37 Years R/o Kayaghat Road, Raigarh, Tahsil And District Raigarh, Chhattisgarh --- Appellant(s) versus 1. Tarachand Gupta S/o Late Shri Ramgopal Gupta, Aged About 37 Years R/o Kayaghat Road, Raigarh, Tahsil And District Raigarh, Chhattisgarh 2(A). Duliram, S/o Shri Patiram aged about 35 years 2(B) a. Smt. Sudha Gajhbhiye W/o Late Ghanshyam Gajhbhiye, R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(B) b. Minor Kumari Disha D/o Ghanshyam Gajhbhiye, Minor Through Natural Guardian Smt. Sudha Gajhbhiye, S/o Late Ghanshyam Gajhbhiye, R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(B) c. Minor Gautam Gajhbhiye S/o Late Ghanshyam Gajhbhiye, Minor Through Natural Guardian Smt. Sudha Gajhbhiye, S/o Late Ghanshyam Gajhbhiye, R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(C) Lata Bai D/o Patiram, R/o Village Jamgaon, Tahsil And District Raigarh, Chhattisgarh 3. State Of Chhattisgarh, Through Collector, Raigarh, Chhattisgarh, JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.02.11 17:00:54 +0530 2 District : Raigarh, Chhattisgarh --- Respondent(s) SA No. 27 of 2017 Kailash @ Duliram S/o Shri Patiram Mahar, Aged About 37 Years R/o Kayaghat Road, Raigarh, Tahsil And District Raigarh, Chhattisgarh ---Appellant(s) Versus 1. Tarachand Gupta S/o Late Shri Ramgopal Gupta, Aged About 37 Years R/o Kayaghat Road, Raigarh, Tahsil And District Raigarh, Chhattisgarh 2(A). Duliram S/o Shri Patiram, Aged About 35 Years R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(B) a. Smt. Sudha Gajhbhiye W/o Late Ghanshyam Gajhbhiye, R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(B) b. Minor Kumari Disha D/o Ghanshyam Gajhbhiye, Minor Through Natural Guardian Smt. Sudha Gajhbhiye, S/o Late Ghanshyam Gajhbhiye, R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(B) c. Minor Gautam Gajhbhiye S/o Late Ghanshyam Gajhbhiye, Minor Through Natural Guardian Smt. Sudha Gajhbhiye, S/o Late Ghanshyam Gajhbhiye, R/o Stationpara, Brijrajnagar, District Jharsugda, Orissa 2(C) Lata Bai D/o Patiram, R/o Village Jamgaon, Tahsil And District Raigarh, Chhattisgarh 3. State Of Chhattisgarh, Through Collector, Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh --- Respondent(s) 3 For Appellant(s) : Mr. Amit Sharma, Advocate For Respondent No. 1 : Mr. Sourabh Shamra, Advocate For Respondent No. 3/ State : Mr. Anand Gupta, Dy. G.A. Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 10.02.2026 1. Since both the appeals arising out of common judgment and decree, they are being considered and decided together. 2. Both the second appeals under Section 100 of the Code of Civil Procedure, 1908 (for short, “CPC”) have been preferred by the defendant/appellant against the common judgment and decree dated 26.09.2016 passed by the learned 3rd Additional District Judge, Raigarh in Civil Appeal No. 30-A/2011 (Kailash v. Tarachand Gupta) and Civil Appeal No. 31-A/2011 (Tarachand Gupta v. Kailash). By this common judgment, the learned First Appellate Court dismissed Civil Appeal No. 30-A/2011 preferred by the defendant and allowed Civil Appeal No. 31-A/2011 preferred by the plaintiff. 3. Civil Appeal No. 30-A/2011 was filed by defendant Kailash challenging the judgment and decree dated 03.05.2011 passed by the learned 1st Civil Judge, Class-II, Raigarh in Civil Suit No. 64- A/2008, whereas Civil Appeal No. 31-A/2011 was filed by plaintiff 4 Tarachand Gupta against the same judgment and decree by which the suit preferred by the plaintiff was partly allowed and also partly allowed the counter claim filed by the defendant. 4. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the learned Trial Court. 5. The plaintiff preferred the suit for declaration of tittle and possession pleading inter alia that he had purchased land bearing Sheet No. 60, Plot No. 66/2, admeasuring 1056 sq. ft., situated at Kayaghat Road, Raigarh, from Keshavdas S/o Ganpat by sale deed dated 15.11.1975 for a consideration of 400. A permanent ₹ lease of the said land was granted in his favour up to March, 2022, and his name is duly recorded in the Nazul records, thereby establishing his ownership. Adjacent to the plaintiff’s land, land bearing Sheet No. 60, Plot No. 66/3, admeasuring 144 sq. ft., was recorded in the name of late Parvatibai, who died on 15.01.2003. After her death, her sister Sumitra and Kailash (defendants) allegedly started residing on the said land and further encroached upon 176 sq. ft. of the plaintiff’s land by constructing a temporary structure without his consent. Upon objection by the plaintiff on 23.10.2004, the defendants denied encroachment and suggested demarcation. The plaintiff thereafter applied for demarcation on 26.10.2004, pursuant to which a report and panchnama were prepared confirming encroachment of 176 sq. ft. by defendants No. 1 and 2. Despite repeated requests, the encroachment was 5 not removed. Hence, the plaintiff filed the suit seeking declaration of his title over the encroached portion of 176 sq. ft. out of 1056 sq. ft. and for recovery of vacant possession after removal of encroachment. 6. Defendants No. 1 and 2, in their written statement, denied the plaint averments and contended that the land bearing Sheet No. 60, Plot No. 66/2, admeasuring 1056 sq. ft., situated at Kayaghat Road, Raigarh, originally belonged to their maternal grandfather and father, late Ragho, who was in lawful ownership and possession thereof. After his death, the defendants, being his sole legal heirs, have been continuously residing upon and possessing the said land. It was further pleaded that Keshavdas had no right, title or interest over the suit land and, therefore, had no authority to execute the sale deed dated 15.11.1975 in favour of the plaintiff. Consequently, the said sale deed is illegal, void and confers no right upon the plaintiff. The defendants also alleged that the plaintiff obtained lease/patta and mutation in his name on the basis of incorrect information. With regard to adjoining land bearing Sheet No. 60, Plot No. 66/3, admeasuring 144 sq. ft., recorded in the name of late Parvatibai, it was stated that after her death, defendant No. 1 initiated proceedings for mutation on the basis of a Will executed by Parvatibai and only then came to know about the plaintiff’s actions. The defendants further contended that they were neither informed nor served with any notice regarding the 6 demarcation proceedings and, therefore, the demarcation is not valid in the eyes of law. On these grounds, dismissal of the suit was prayed for. 7. Defendants No. 1 and 2 also preferred a counter-claim contending that land bearing Sheet No. 60, Plot No. 66/2, admeasuring 1200 sq. ft., was Nazul land granted on lease by the Government in favour of their predecessor late Ragho, who has since died. The defendants, being the legal heirs and successors of Ragho, claimed ownership and possession over the said land. It was alleged that on 23.10.2004, the plaintiff, with an intention to grab the land, encroached upon 880 sq. ft. out of the total 1200 sq. ft. and constructed a house thereon. The defendants further pleaded that the sale deed dated 15.11.1975 executed by Keshavdas in favour of the plaintiff is illegal, void and not binding upon them, as Keshav das had no right to transfer the land. It was also contended that on the basis of the said sale deed, the plaintiff obtained mutation of his name without impleading the defendants, and therefore, the mutation order dated 17.04.1980 passed in Revenue Case No. 144/31-6/1978-79 is wholly illegal and void. On these grounds, the defendants sought recovery of possession of the encroached land, declaration that the sale deed dated 15.11.1975 is void and inoperative, and further declaration that the mutation order dated 17.04.1980 is not binding upon them. 8. The plaintiff filed a reply to the counter-claim denying the 7 allegations made therein. It was pleaded that the map filed by the defendants along with the counter-claim is forged and fabricated. The plaintiff further contended that the counter-claim is barred by limitation, as the defendants failed to initiate any proceedings within three years from the date of execution of the registered sale deed and within the prescribed period from the date of the mutation order. It was specifically denied that the plaintiff had encroached upon 880 sq. ft. of land. According to the plaintiff, no cause of action arose in favour of Defendants No. 1 and 2, and if at all they had any grievance, they ought to have filed an independent suit. Therefore, the counter-claim was liable to be rejected under Order VIII Rule 6-C of the Code of Civil Procedure. The plaintiff further pleaded that late Ragho had sold his land admeasuring 1360 sq. ft., formerly Nazul Khasra No. 2357/7, to Keshavdas, son of Ganpat, for a consideration of Rs. 700/- by a registered sale deed and delivered possession thereof. Thereafter, Keshavdas, after receiving consideration, executed a registered sale deed in favour of the plaintiff in respect of the suit land, on the basis of which mutation was duly effected by order dated 17.04.1980. It was also pleaded that the suit land was granted on lease to the plaintiff by the Government, which has been duly renewed, and the plaintiff is in possession thereof having constructed a permanent house thereon. 9. The learned trial Court, after framing 12 issues and appreciating 8 the oral and documentary evidence, partly decreed the suit and partly allowed the counter-claim. It held that the sale deed dated 15.11.1975 executed by Keshav Das in favour of the plaintiff was void and did not confer title, hence, the relief of declaration of ownership was rejected. However, on the basis of the lease deed (Ex. P/1), the Court found that the plaintiff had valid leasehold rights over land bearing Sheet No. 60, Plot No. 66/2, admeasuring 1056 sq. ft. from 31.03.1992 to 31.03.2022. The defendants relied on an earlier lease (Ex. D/1) granted to Ragho, which was expired on 31.03.1992 and no renewal was proved. On the basis of the demarcation report (Ex. P/9), the Court held that the defendants were in unauthorized possession of 176 sq. ft. out of the suit land and, accordingly, granted recovery of possession to that extent. The counter-claim was partly allowed only to the extent of holding the sale deed and mutation order ineffective, but the defendants failed to prove their own title. 10. Against the judgment and decree passed by the trial Court the plaintiff and the defendant both have preferred two separate first appeals before the First Appellate Court which were heard together and had been decided together vide judgment and decree impugned herein whereby the court dismissed Civil Appeal No. 30- A/2011 preferred by the defendant and allowed Civil Appeal No. 31-A/2011 preferred by the plaintiff. Aggrieved by the judgment and decree passed by the First Appellate Court, the present 9 Second Appeals have been filed by the defendant No.1 Kailash @ Duliram. 11. I have heard learned counsel for the parties, perused the material available on record. 12. Learned counsel for the appellant submits that the alleged sale deed executed by Ragho in the year 1962 in favour of Keshav das was void and inoperative in law, as no prior permission from the Collector or the competent authority was obtained for transfer of the disputed land. It is further contended that the impugned judgment has been passed in disregard of the settled principles of law and without proper appreciation of the oral and documentary evidence available on record. Hence, the same deserves to be set aside. 13. From the material available on record, it is evident that, upon due appreciation of the oral and documentary evidence adduced by the parties, the First Appellate Court held that the burden to prove that the sale deed dated 15.11.1975 was void lay upon the defendants. On examination of the documents (Ex. D-1 and D-7 to D-12), it was found that the lease granted to Ragho in 1969 was only a renewal of earlier leases and not a fresh grant, thereby negativing the defendants’ contention that Ragho had no authority to transfer the land in 1962. The Court further observed that although a re- demarcation had been ordered, no subsequent demarcation report was produced by either party, nor did the defendants conduct any 10 independent demarcation. Thus, the trial Court’s findings on possession and encroachment were upheld. On the question of limitation of the counterclaim, the Appellate Court held that the defendants’ plea of knowledge in 2004 was not believable in view of the mutation and building permission obtained by the plaintiff as early as 1980 and the evidence showing proximity of residence. Accordingly, the counter claim was held to be barred by limitation, and the trial Court’s finding on this issue was reversed. Consequently, Civil Appeal No. 30A/2011 preferred by the defendant was dismissed and Civil Appeal No. 31A/2011 preferred by the plaintiff was allowed. The decree of the trial Court, insofar as it partly allowed the counterclaim, was set aside, and it was declared that the plaintiff is the owner and entitled to possession of 176 sq. ft. out of the total 1056 sq. ft. land. The finding recorded by the learned first appellate Court is just and proper and there is no illegality or infirmity. 14. So far as the contention that the alleged sale deed executed by Ragho in the year 1962 in favour of Keshav das was void and inoperative in law, as no prior permission from the Collector or the competent authority was obtained for transfer of the disputed land is concerned, it is noteworthy to mention here that neither this plea was taken in the written statement nor any issue was framed by the learned trial Court in this regard and, as such, this contention is not tenable at this juncture. 11 15. 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. Findings of fact recorded by the Court cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law. 16. In the present case, the First Appellate Court has recorded finding, on the basis of evidence available on record, that the appellant/ defendants failed to establish his 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. 17. The questions sought to be raised in the present Second Appeal do not give rise to any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure. 18. Further, 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. These questions, in my view, are essentially question of facts. The appellant failed to raise any substantial question of law which is required under Section 100 of the CPC. In any event, the Second Appeal did not involve any substantial question of law as contemplated under Section 100 of 12 the CPC, no case is made out by the appellant herein. The judgment impugned passed by the learned First Appellate Court is just and proper and there is no illegality and infirmity at all. 19. Having heard learned counsel for the appellant and on perusal of the record of the case and in view of the above settled legal proposition, I find absolutely no merit in this appeal, involving no question of law much less substantial question of law within the meaning of Section 100 of the CPC. In my view, the judgment and decree passed by the Court appears to be just, proper and legal. The findings recorded are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and they does not call for any interference. 20. Consequently, both the Second Appeals fail and are hereby dismissed in limine resulting in upholding of the judgment and decree of the learned First Appellate Court. 21. Decree be drawn accordingly. SD/- (Bibhu Datta Guru) Judge Jyoti