1 2026:CGHC:15742 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 298 of 2022 Sunderlal Sonwani S/o Bundram Sonwani Aged About 54 Years Caste Satnami, Occupation - Service And Cultivator, R/o Village - Kusumjhar, Tahsil Dabhra,, District : Janjgir-Champa, Chhattisgarh ... Petitioner(s) versus 1. Chitkunwar W/o Dildar Aged About 46 Years R/o Village Kusumjhar, Tahsil Dabhra, District : Janjgir-Champa, Chhattisgarh 2. Smt. Yogesh D/o Late Dildar Aged About 24 Years R/o Village Timarlaga, Tahsil Sarangarh,, District : Raigarh, Chhattisgarh 3. Deepak Kumar S/o Late Dildar Aged About 21 Years R/o Village Kusumjhar, Dabhra, District : Janjgir-Champa, Chhattisgarh 4. State Of Chhattisgarh Through Collector, Janjgir,, District : Janjgir-Champa, Chhattisgarh 5. Sukwaro Bai W/o Late Nirmaldas Mahant Aged About 63 Years R/o Chhote Attarmuda, Behind Govt. Murgi Farm, Raigarh, District And Tahsil Raigarh, Chhattisgarh. 6. Vinod Kumar Mahant S/o Late Nirmaldas Mahant Aged About 31 Years R/o Kayaghat Raigarh,, District : Raigarh, Chhattisgarh 7. Aarati Do Nirmaldas Mahant Aged About 41 Years R/o Village Faguram, Tahsil Gharghoda,, District : Raigarh, Chhattisgarh 8. Basanti D/o Late Nirmaldas Mahant Aged About 29 Years R/o Chhote Attarmuda, Behind Govt. Murgi Farm, Raiarh, District And Tahsil Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Manoj Kumar Jaiswal, Advocate JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.04.09 11:26:13 +0530 2 Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 07.04.2026 1. The plaintiff/appellant has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 28.03.2022 passed by the Learned 1st Upper District Judge, Sakti, District Janjgir Champa C.G. in Civil Appeal No. 51-A/2022 ( Nirmal Das Vs. Dildar & Ors.) arising out of the judgment and decree dated 30.04.2018 passed by the Trial Court in Civil Suit No. 227-A/2007(Nirmal Das & Anr. Vs. Dildar & Ors.) whereby the learned trial Judge has dismissed the suit of the plaintiff/ appellant. For the sake of convenience, the parties would be referred as per their status before the learned trial Court. 2. The original plaintiff instituted a Civil suit in respect of land bearing Khasra No. 794, area 0.20 acres, situated at Village Kosamjhar, Tahsil Dabhra, District Janjgir–Champa (hereinafter referred to as the suit land), seeking declaration of title and recovery of possession pleading inter alia that the ancestors of the plaintiff had been residing on the suit land for more than 100 years after constructing a house and badi. The plaintiff’s grandfather Horaram resided there, and after his death the property was possessed by the plaintiff’s father Shekdas and uncle Shaildas, and thereafter by the plaintiff 3 along with his brothers Premdas and Rohitdas. It is further pleaded that in a family arrangement in the year 1971, the suit property fell to the share of the plaintiff, and an agreement dated 02.09.1971 was executed by his brothers as a memorandum acknowledging the same. Since then, according to the plaintiff, he alone had title and possession over the suit land. The plaintiff subsequently went to Raigarh for earning his livelihood, during which period the house standing on the suit land became dilapidated. Taking advantage of his absence, the defendant allegedly demolished the boundary wall and forcibly occupied the suit land. When the plaintiff returned to the village in 1999, he found the defendant interfering with his possession. The plaintiff lodged a complaint before the Tahsildar, Dabhra on 11.12.1999, which was allowed by order dated 08.09.2000. The appeal filed by the defendant before the Sub-Divisional Officer (Revenue) was dismissed on 07.06.2001. However, in further appeal, the Board of Revenue, Chhattisgarh by order dated 07.11.2003 set aside the earlier orders holding that the claim involved adjudication of title which falls within the jurisdiction of the civil court. After the order of the Board of Revenue, the defendant again attempted to raise construction over the suit land on 23.11.2003, and allegedly threatened the plaintiff, which led the plaintiff to lodge a report at Police Station Dabhra. It is further pleaded that during the 4 pendency of the proceedings, the original plaintiff Nirmaldas executed a Will dated 07.04.2006 in favour of Sunderlal, making him the testamentary successor. After the death of Nirmaldas, Sunderlal was substituted as plaintiff and continued the suit claiming title to the suit land on the basis of the said Will. In support of his claim, the plaintiff relied upon several documents including the order of the Board of Revenue dated 07.11.2003, the memorandum/ acknowledgment dated 02.09.1971, complaint dated 23.11.2003, revenue records, demarcation report, field book, map, photographs of the suit land, and the Will dated 07.04.2006, and examined several witnesses before the trial court. 3. During pendency of the suit, the original plaintiff Nirmaldas died and Sunderlal Sonwani was substituted as plaintiff claiming himself to be the legatee under a Will executed by the deceased plaintiff. Similarly, upon the death of defendant No.1 Dildar, his legal representatives (defendants No.1-A to 1-C) were brought on record. 4. Defendant No.1 in his written statement denied the plaint averments and contended that Sunderlal has been impleaded as plaintiff on the basis of an alleged Will dated 07.04.2006 said to have been executed by the deceased plaintiff Nirmaldas, which according to the defendant is forged 5 and fabricated, and in the absence of declaration regarding its validity, Sunderlal does not acquire any right over the suit property. It was further pleaded that the suit land originally belonged to Shobhit Das and Shobharan Das, who had purchased the same through registered sale deeds executed by Premdas and Rohitdas and other vendors in the year 1964, and since then they remained in peaceful possession. After their death, Defendant No.1, being their legal heir, has continued in possession of the property. The defendant also denied the alleged agreement dated 02.09.1971, stating that the said document is false, fabricated and unregistered. The defendant further contended that the natural heirs of Nirmaldas were not impleaded as parties, rendering the suit bad for non-joinder of necessary parties. It was also pleaded that earlier revenue proceedings culminated in the order of the Board of Revenue dated 07.11.2003, whereby the plaintiff’s claim was rejected as time-barred. On these grounds, it was prayed that the suit be dismissed. The defendant relied upon registered sale deeds and examined witnesses in support of his case. An objection regarding admissibility of the document dated 02.09.1971 (Ex.P-3) was raised by the defendant on the ground that it was an unregistered partition deed; however, the trial court rejected the objection holding that mere marking of a document as an exhibit does not determine its admissibility in evidence. 6 5. The trial court, after framing the issues and appreciating the oral and documentary evidence on record, held that the plaintiff failed to prove his title and possession over the suit land. The court observed that the plaintiff had relied upon an unregistered document dated 02.09.1971 said to be an agreement/acknowledgment of partition; however, the said document was not duly proved through competent evidence and, therefore, no benefit could be derived from it. The plaintiff also failed to produce any reliable documentary evidence such as revenue records, patta, or khasra entries to establish his ownership or possession over the suit property. The court further found that the evidence on record, including the spot inspection report and demarcation proceedings, indicated possession of the defendant over the suit land. It was also observed that a registered sale deed dated 01.04.1964 executed by the plaintiff’s brothers in favour of the defendant’s predecessors supported the defendant’s claim of possession. With regard to the Will dated 07.04.2006 allegedly executed by Nirmaldas in favour of Sunderlal, the court held that the Will had not been proved in accordance with law as the attesting witness failed to depose regarding the execution and attestation of the Will as required under the provisions of the Indian Succession Act and the Evidence Act. Consequently, Sunderlal could not derive any right or title over the suit land on the basis of the said Will. However, the 7 court also held that the defendant failed to establish that the Will was forged or fabricated. The trial court further held that the suit suffered from non-joinder of necessary parties as the plaintiff’s brothers Premdas and Rohitdas, who were stated to have interest in the ancestral property, were not impleaded in the suit. The court also found that the valuation of the suit property and the court fee paid by the plaintiff were not proper, as the suit land being abadi land ought to have been valued on the basis of market value rather than on the basis of land revenue. In view of the above findings, the trial court concluded that the plaintiff failed to establish his entitlement to declaration of title and recovery of possession over the suit land. Accordingly, the suit was dismissed. 6. Aggrieved by the said judgment and decree dated 30.04.2018, 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. 7. Learned counsel for the appellant submitted that the impugned judgment and decree passed by both the courts are illegal, perverse and contrary to the evidence available on 8 record and therefore liable to be set aside. It is contended that the courts have failed to properly appreciate the oral and documentary evidence adduced by the plaintiff in support of his claim. It is further submitted that the Tahsildar had allowed the application of the plaintiff after duly considering the material available on record and the Sub-Divisional Officer (Revenue), Dabhra had also rightly dismissed the appeal filed by the defendants. However, the Board of Revenue passed a contrary order in favour of the defendants without properly considering the material on record. Learned counsel further argued that the courts below have failed to take into account that the plaintiff and his predecessors had constructed a house and courtyard over the suit land and had been in peaceful possession and residence thereon for more than 100 years. It is lastly submitted that both the courts have not properly appreciated the documents and evidence produced by the plaintiff in their true perspective, resulting in an erroneous dismissal of the suit. Hence, it is prayed that the impugned judgments and decrees be set aside. 8. I have heard learned counsel for the appellant on the question of admission, and the impugned judgments and decrees passed by the learned trial Court as also the learned First Appellate Court have been carefully examined. 9. The First Appellate Court, upon reappreciation of the entire 9 oral and documentary evidence available on record, held that the plaintiff/appellant failed to establish his title and possession over the suit land. The Court observed that although the plaintiff claimed the suit land to be ancestral abadi land in possession of his predecessors for about 100 years, no documentary evidence was produced to show that any patta or title in respect of the suit land had ever been granted by the Government in favour of the deceased plaintiff Nirmaldas or his ancestors. The revenue documents produced by the plaintiff also did not clearly mention the khasra number of the disputed land. The Court further noted that the earlier orders passed by the Tahsildar and the Sub- Divisional Officer directing the defendant to vacate the land had already been set aside by the Board of Revenue by order dated 07.11.2003, whereby the application filed by the deceased plaintiff was held to be time barred. Consequently, there remained no revenue order supporting the claim of the plaintiff regarding title or possession over the suit land. With regard to the Will dated 07.04.2006 relied upon by the plaintiff to claim succession to the property, the Appellate Court held that the said Will was not proved in accordance with law. The Court observed that the Will was executed during the pendency of the dispute relating to the suit property and therefore its evidentiary value was doubtful. More importantly, the attesting witnesses examined by the plaintiff 10 failed to prove the execution of the Will as required under law. The Court specifically noted that the witness examined as PW-3 did not depose that the testator had signed the Will in his presence or that he had attested the Will in the presence of the testator, which is a mandatory requirement for proving a Will. In absence of such essential testimony from the attesting witness, the Will could not be said to have been duly proved. The Court also took into consideration the fact that the deceased Nirmaldas had a widow and children who were alive and that he was residing with his son at Raigarh till his death and his last rites were also performed there. In such circumstances, the execution of the Will in favour of the present appellant during the pendency of the litigation appeared to be unnatural and suspicious. On the basis of the above findings, the Appellate Court concluded that the plaintiff failed to establish his title or possession over the suit property and that the Will relied upon by him was not proved in accordance with the requirements of law. Accordingly, the Court held that the trial court had rightly dismissed the suit and that the judgment and decree dated 30.04.2018 passed by the trial court were in accordance with law and facts. 10. The Supreme Court in the matter of Gopal Krishan and Ors. Vs. Daulat Ram and Ors. 2025 (2) SCC 804 laid down the principles which are required for proving of a WILL. Para 15 of 11 the said decision reads as under:- 15. The requisites for proving of a will are well established. They were recently reiterated in a judgment of this Court in Meena Pradhan v. Kamla Pradhan. See also Shivakumar v. Sharanabasappa, The principles as summarised by the former are reproduced as below: (Meena Pradhan cases, SCC pp. 737-38, para 10) "10.... 10.1. The court has to consider two aspects: firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him: 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation 12 is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required. 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator. 10.6 If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be 13 called to supplement his evidence; 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier; 10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious d circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will, sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will; 10.10. One who alleges fraud, fabrication, undue influence et cetera e has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation: 14 10.11. Suspicious circumstances must be "real, germane and valid" and not merely "the fantasy of the doubting mind [Shivakumar v. Sharanabasappa". Whether a particular feature would qualify as "suspicious" would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc." 11. 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 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. 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/ plaintiffs failed to establish their case by placing cogent and 15 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. 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 16 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 as well as by the learned First Appellate Court are just and proper and there is no illegality and infirmity at all. 17. 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 both the Courts appear 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. 18. Consequently, the Second Appeal fails and is hereby dismissed resulting in upholding the judgment and decree passed by the learned Appellate Court. SD/- (Bibhu Datta Guru) Judge Jyoti