1 2026:CGHC:5711 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 417 of 2016 1. Bhawan Dead Through LR’s- 1(a) Manijar Ram, S/o Late Bhawan, Aged About 36 Years R/o- Village- Kundikala, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh. 2 - Vishambhar, Died Through LR’s- 2.(a) Pancham, S/o Late Vishambhar, Aged About 40 Years R/o- Village- Kundikala, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh. 2(b) Kanchan, S/o Late Vishambhar, Aged About 35 Years R/o- Village- Kundikala, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh. 3. Charku, S/o Tirku Gond, Aged About 77 Years R/o- Village- Kundikala, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh,.....Plaintiffs., District : Surguja (Ambikapur), Chhattisgarh ... Appellant(s) versus 1. Smt. Budhiyaro D/o Alam Saay, Aged About 57 Years R/o- Village- Baknakala, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh. 2. Ram Kailash, S/o Bodhsaay Kawar, Aged About 35 Years R/o- Village- Udaari, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3. Ram Nivas, S/o Bodhsaay Kawar, Aged About 30 Years R/o- JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.02.03 11:27:59 +0530 2 Village- Udaari, Tehsil- Dhourpur Lundra, District- Sarguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 4. State Of Chhattisgarh, Through District Collector, Sarguja, Ambikapur, Chhattisgarh ... Respondent(s) For Appellant(s) Mr. Vijay Kumar Sahu, Advocate For Respondents No. 1 to 3 Mr. Arvind Sinha, Advocate For Respondent/ State Mr. Santosh Soni, G.A. Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 02.02.2026 1. The plaintiffs/ appellants have preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 27.06.2012 passed by the Learned 2nd Additional District Judge, Ambikapur, Sarguja in Civil Appeal No. 51A/2014 (Bhawan & Ors. Vs. Smt. Budhiyaro & Ors.) affirming the judgment and decree dated 27.09.2011 passed by the Learned 3rd Civil Judge Class-II, Ambikapur Sarguja C.G. in Civil Suit No. 64A/2009 (Bhawan & Ors. Vs. Smt. Budhiyaro & Ors.) whereby the learned trial Judge has dismissed the suit of the plaintiffs/ appellants herein. For the sake of convenience, the parties would be referred as per their status before the learned trial Court. 2. The plaintiff preferred the suit for declaration of title and 3 permanent injunction of the suit property pleading, inter alia, that late Tirku Gond had 4 sons, namely Thoriya, Thepa, Guli and Charku. According to the plaintiffs, Tirku Gond had married twice, and Alam Sai, who was born to the second wife, was from her previous wedlock with her first husband and therefore was not the biological or legal heir of Tirku Gond. It is pleaded that defendant No. 1, Budhiyaso, being the daughter of Alam Sai, has no right, title or interest in the suit land. However, in the year 2001, defendant No. 1 allegedly succeeded in getting her name entered in the revenue records as a legal heir of Tirku Gond and also got the suit land partitioned, whereby she was allotted 1/4th share of the suit land described in Schedule-A, and the land so allotted to her is described in Schedule-B. During the pendency of Civil Suit No. 8A/2005 titled Budhiyaro v. Bhawan & Ors., defendant No. 1 further transferred the land described in Schedule-C to defendant No. 2 & 3 by sale deed dated 28.04.2008. Alleging the said mutation, partition and transfer to be illegal and void, the plaintiffs have filed the present suit seeking declaration of title over the suit land described in Schedule-B & C and for permanent injunction restraining the defendants from interfering with their possession. 3. The defendant No. 1, in her written statement, denied the averments made in the plaint and pleaded that late Tirku Gond had five sons, namely Alam Sai, Thepa, Guli and Charku, born from his wife Dulari, and Thoriya, who was born from his wife Bathom. It is 4 contended that during his lifetime, late Tirku Gond had partitioned the suit land amongst his five sons, however, due to revenue discrepancies, the names of all the sons were not mutated in the records. It is further pleaded that defendant No. 1, Budhiyaro, inherited the property of her father Alam Sai and has been in continuous cultivation and possession of the suit land that fell to his share. Defendant No. 1 got her name mutated in the revenue records by following the prescribed procedure, but the said mutation was subsequently set aside by the Sub-Divisional Officer (Revenue) on an erroneous understanding of law. It is further pleaded that due to lack of legal knowledge, defendant No. 1 transferred a part of the suit land to meet financial necessities. At present, defendant No. 1 continues to cultivate and possess the remaining suit land, except the portion transferred to defendants No. 2 and 3. On these grounds, the defendants have prayed for dismissal of the suit with costs. 4. Defendant no.2 and 3 have not filed their written statement although they are contesting. 5. On the pleadings of the parties, the learned trial Judge framed as many as 6 issues and given opportunity to the parties to adduce evidence, both oral and documentary and after a full fledged trial dismissed the suit of the plaintiff’s mainly on the grounds that the plaintiff’s have failed to prove that Alam Sai was not the legal heir of late Tirku Gond. On the contrary, it is an undisputed fact that 5 defendant No. 1 is the daughter of late Alam Sai and that the suit land was the self-acquired property of late Tirku Gond. In such circumstances, Alam Sai, being a legal heir of Tirku Gond, inherited the suit land, and consequently, defendant No. 1, as his heir, also acquired valid rights in the suit land. Against the judgment and decree passed by the trial Court the plaintiffs/ appellants have preferred first appeal before the First Appellate Court which has also been dismissed vide judgment and decree impugned herein affirming the findings of the trial Court. Aggrieved by the judgment and decree passed by the First Appellate Court, the present Second Appeal has been filed. 6. I have heard learned counsel for the parties, perused the material available on record. 7. Learned counsel for the appellants submits that Alam Sai was not the son of late Tirku Gond. He would further submits that mere non proving the fact that Alam Sai was not the LR of Tirku Gond cannot be the sole reason to dismiss the suit. Learned counsel further contends that the Learned Trial Court as well as the Learned First Appellate Court failed to appreciate the material facts and committed a gross error in law and on facts in dismissing the claim of the plaintiff’s /appellants. 8. From the material available on record, it is evident that, upon due appreciation of the oral and documentary evidence adduced by the parties, both the Courts have recorded a categorical finding that 6 the the plaintiffs/appellants failed to prove that Alam Sai was not the son of Tirku Gond. On the contrary, the evidence on record establishes that Alam Sai lived with Tirku Gond as his son and predeceased him, due to which his name could not be entered in the revenue records. The plaintiffs/appellants themselves admitted in cross-examination that Tirku Gond had both sons and daughters, yet they failed to implead the daughters or their legal heirs, who prima facie also have a right in the property, thereby rendering the suit defective for non-joinder of necessary parties. Since Alam Sai was held to be the son of Tirku Gond, defendant/respondent No. 1 Budhiyaro Bai, being his daughter, lawfully inherited her father’s share in the suit land and was competent to alienate the same. The Courts rightly held that defendant/respondent No. 1 validly sold her share of the land, as described in Schedule “C”, to defendants/respondents No. 2 and 3. 9. So far as the contention of the plaintiffs that according to their custom daughters have no right on paternal or ancestral property is concerned, it is the trite law that the burden of proof is heavy upon the party asserting custom. In the case at hand, the plaintiffs utterly failed to prove this aspect of the matter by placing cogent and sufficient material. 10. 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 7 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. 11. In the present case, both the Trial Court and the First Appellate Court have recorded concurrent findings, on the basis of evidence available on record. The appellants have failed to demonstrate any perversity, illegality, or misapplication of law in the concurrent findings so recorded. 12. 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. 13. 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 8 the learned First appellate Court are just and proper and there is no illegality and infirmity at all. 14.Accordingly, the present appeal is liable to be and is hereby dismissed at the motion stage itself. SD/- (Bibhu Datta Guru) Judge Jyoti