1 2026:CGHC:1261 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 733 of 2019 1 - Faguwa Ram S/o Itwari Ram Sahu Aged About 58 Years R/o Village Kareli (Chhoti) Tahsil Magarlod,district-Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 2 - Heeralal S/o Itwari Ram Sahu Aged About 55 Years R/o Village Kareli ( Chhoti ) Tahsil Magarlod, District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 3 - Dayaram S/o Ram Lal Sahu Aged About 78 Years R/o Village Kareli (Chhoti), Tahsil Magarlod, District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh ... Appellants versus 1 - Roopchand S/o Bisouha Ram Sahu. R/o Village Kareli ( Chhoti) Tahsil Magarlod, District-Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh 2 - Maan Bai W/o Roopchand Sahu. R/o Village Kareli ( Chhoti ) Tahsil Magarlod, District- Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh ---- Respondents For Appellants : Mr. H.B. Agrawal, Senior Advocate assisted by Ms. A. Sandhya Rao, Advocate For Respondents : Mr. Ghanshyam Patel, Advocate Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 08.01.2026 AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2026.01.15 17:02:22 +0530 2 1. By the present appeal under Section 100 of the CPC, the appellants/plaintiffs challenging the impugned judgment and decree dated 23/09/2019 passed by the Additional District Judge, Dhamtari, C.G. in Civil Appeal No.04-A/2019 (Faguwa Ram & Ors Vs. Roopchand & Ors) arising out of the judgment dated 24/11/2018 passed by the learned Civil Judge Class-II, Link Court, Kurud, District Dhamtari, C.G. in Civil Suit No.24-A/2013 (Faguwa Ram & Ors Vs. Roopchand & Ors). For the sake of convenience, the parties would be referred as per their status before the learned trial Court. 2. The plaintiffs preferred the Civil Suit pleading inter alia that the plaintiff’s grandfather Ramlal, son of Dhansai, obtained a patta from the Gram Panchayat Kareli Chhoti on 18.03.1981 for Abadi land bearing Khasra No. 553 (present Khasra No. 1102), Plot No. 284, area 5 decimal, measuring 48 × 36 feet. Likewise, Budhuram, son of Ramlal, also obtained a patta on 30.02.1981. They remained in possession of the said land during their lifetime. After their death, the plaintiffs are in joint possession thereof. Budhuram died issueless, and therefore the plaintiffs are the joint legal heirs to his property. With an intention to take illegal possession of the suit land, the defendants deliberately attempted to construct a fence over the plaintiffs’ land. Upon a complaint being made by the plaintiffs to the Gram Panchayat, a meeting was held by the Panchayat on 29.10.2012, and a copy of 3 the proceedings was provided to the plaintiffs. In the said proceedings, in the Patta Distribution Register of the Panchayat, page No. 54, serial No. 208, Budhuram, son of Ramlal Sahu, is shown as the pattadar. Further, the village heads, after inspecting the spot, identified and pointed out the actual land and stated that the defendants were making a false claim over the plaintiffs’ land. In July 2013, the defendants forcibly attempted to interfere with the suit land by trying to construct a house thereon. Consequently, the present suit has been filed seeking relief of declaration of title, recovery of possession, and permanent injunction. 3. In the said Civil Suit, the defendants No. 1 and 2 submitted their written statement and stated that Dukhiya Bai, wife of Devsingh Sahu, was granted a patta for Plot No. 263 of Khasra No. 553, admeasuring 0.05 decimal, by the Naib Tahsildar, Magarlod, on 14.01.1997. In her old age, Dukhiya Bai, for the purposes of her medical treatment and livelihood, sold the suit land after receiving cash consideration to Defendant No. 1, Roopchand, on 27.05.1997, and handed over possession to Roopchand in the year 1997. Since then, he has been in continuous possession of the said land, and the entry of the said plot exists in the revenue records. 4. The learned Trial Court, after framing the issues and upon due consideration of the evidence adduced by both the parties as well 4 as the material available on record, dismissed the suit holding that under the provisions of Section 244 of the Chhattisgarh Land Revenue Code, 1959 the patta was issued for the purpose of usage and the Court cannot issue a declaration of title. 5. Against the said judgment and decree, the plaintiffs filed the Civil Appeal before the learned appellate Court who by order impugned, dismissed the Civil Appeal by maintaining the judgment and decree passed by the learned trial Court. Thus, this appeal by the appellants/plaintiffs. 6. I have heard learned counsel for the parties, perused the material available on record. 7. It is necessary to mention here that during pendency of this appeal, the appellant filed an application (I.A.No.2 of 2021) under Order 26 Rule 9 CPC for demarcation of land as the identification of the land is in dispute. By placing reliance upon the decision rendered by the High Court of Madhya Pradesh in the matter of Durgar Prasad v Praveen reported in 1975 AIR (MP) 196, learned counsel would submit that encroachment agreed map is not existing, therefore, it can be decided by appointment of a Commissioner. 8. In response to the said application (I.A.No.2 of 2021), the respondents filed their reply and contended that the application under Order 26 Rule 9 of the CPC for appointment of Commissioner is not maintainable at appellate stage because the 5 appellate Court is not a forum to create evidence. They stated that the appellant did not file the application under Order 26 Rule 9 CPC before the trial Court or before the first appellate Court and for the first time they filed this application in the instant appeal and as such the same is not maintainable. 9. It is noteworthy to mention here that the High Court should not generally decide an application under Order 26 Rule 9 of the CPC itself & interfere with the fact found by learned trial Court, but rather direct the trial Court to decide it, as the power to appoint a Commissioner rests with the trial Court for elucidating the disputed facts and handling evidence is primarily its function. 10. It is an admitted position that the suit land obtained by the ancestors of the plaintiffs on the basis of patta given by the revenue authorities for the purpose of usage. The trial Court on due appreciation of the relevant aspects of the matter has rightly observed that the Court cannot issue the declaration of title in the respect of the lands obtained under the patta. 11. 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 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. 6 12. In the present case, both the Trial Court and the First Appellate Court have concurrently recorded findings, on the basis of evidence available on record, that the appellants/defendants failed to establish their case by placing cogent and sufficient material. The appellants have failed to demonstrate any perversity, illegality, or misapplication of law in the findings so recorded. 13. The questions sought to be raised in the present Second Appeal essentially relate to re-appreciation of evidence and challenge to concurrent findings of fact. Such questions do not give rise to any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure. 14. It is well established that when there is a concurrent finding of fact, unless it is found to be perverse, the Court should not ordinarily interfere with the said finding. 15. 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. 7 16. Be that as it may, the argument advanced by learned counsel for the appellants 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 appellants 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 the CPC, no case is made out by the appellants herein. The judgments impugned passed by the learned trial Court as well as by the learned First appellate Court are just and proper and there is no illegality and infirmity at all. 17. Accordingly, the present appeal is liable to be and is hereby dismissed. Consequently, the application (I.A.No.2 of 2021) under Order 26 Rule 9 the CPC is also dismissed. SD/- (Bibhu Datta Guru) Judge Gowri/ Amardeep