1 2026:CGHC:19209 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 267 of 2025 1 - Shivkumar Gupta S/o Late Vishwanath Gupta Aged About 65 Years R/o Ward No. 09, Tahsil- Pandariya, District- Kabirdham (C.G.) 2 - Smt. Sarita Dani D/o Late Vishwanath Gupta Aged About 40 Years W/o Shri Vijay Dani, R/o Pipariya, Tahsil- Pipariya, District- Kabirdham (C.G.) 3 - Shubham Gupta S/o Shivkumar Gupta Aged About 35 Years R/o Ward No. 07, Pandatari, Tahsil- Pandariya, District- Kabirdham (C.G.) Petitioner(s) Versus 1 - Tirathram S/o Lakhan Gupta Aged About 73 Years R/o- Pandatari, Tahsil- Pandariya, District- Kabirdham (C.G.) 2 - Jaleshwar Gupta S/o Makhan Gupta Aged About 70 Years R/o- Pandatari, Tahsil- Pandariya, District- Kabirdham (C.G.) 3 - Smt Shivkumari Gupta D/o Late Vishwanath Gupta Aged About 57 Years W/o Shri Prafull Gupta, R/o Ganiyari, Tahsil- Ganiyari, District- Bilaspur (C.G.) 4 - Smt Shashi Gupta D/o Late Vishwanath Gupta Aged About 41 Years W/o Shri Ravi Gupta, R/o Village Parsada, Tahsil- Takhatpur, District- Bilaspur (C.G.) Respondent(s) (Cause-title taken from Case Information System) For Appellant(s) : Mr. Akashdeep Sharma, Advocate Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 25/04/2026 RAHUL JHA Digitally signed by RAHUL JHA Date: 2026.04.27 13:17:12 +0530 2 1. The present Second Appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908 by the plaintiffs/appellants, challenging the judgment and decree dated 30/01/2025 passed by the learned II Additional Judge to the Court of District Judge, Kawardha (C.G.) in Civil Appeal No. 02-A/2024 (Shivkumar & Others v. Tirathram & Others). By the said judgment, the First Appellate Court dismissed the appeal filed by the plaintiffs/appellants and affirmed the judgment and decree dated 26/12/2023 passed in Civil Suit No. 12/A/2017 {Vishbnath Gupta (since died) through LRs Shiv Kumar & Others v. Tirathram & Another} by the Civil Judge Class-II, Pandariya, District Kabirdham (C.G.) whereby the suit filed by the plaintiffs had been dismissed. 2. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the Trial Court. 3. (a) The original plaintiff, namely Vishbanath Gupta, instituted a civil suit seeking a decree of permanent injunction against the defendants in respect of agricultural land bearing Khasra No. 302/19 K, admeasuring total area 0.87 acres, situated at Village Pandatarai, Tahsil Pandariya, District Kabirdham (C.G.), more particularly in respect of a portion admeasuring about 0.05 acres, as described in Schedule ‘A’ appended with the plaint. During pendency of the suit, the original plaintiff expired and, thereafter, the present appellants were brought on record and substituted as his legal representatives in accordance with law before the Trial Court. (b) It is the case of the plaintiffs that the suit land is his ancestral 3 agricultural property, which stands recorded in his name in the revenue records. According to the plaintiffs, the said land was allotted to them in an oral family partition between his father and brother, and since thereafter, they have been in continuous possession thereof. It is further pleaded that originally the total holding was larger in extent, out of which 0.13 acres was acquired by the State Government in the year 2014 for construction of Pandatarai–Madmada road, and compensation for the same was duly paid to the plaintiff. After such acquisition, the plaintiffs asserts that they are left with 0.87 acres of land, which continues to remain under their ownership and possession. (c) The plaintiffs further alleges that the disputed portion of about 0.05 acres, forming part of Schedule ‘A’, is within their aforesaid holding and the defendants have no right, title or interest over the same. It is specifically averred that about one year prior to filing of the suit, the defendants, with an intention to illegally encroach upon the suit land, started dumping soil and attempted to raise construction thereon, thereby trying to dispossess the plaintiffs forcibly. The plaintiffs claims that they raised objections before the revenue authorities and also initiated proceedings before the Tahsildar, Pandariya, wherein interim protection was initially granted, however, the proceedings were ultimately dismissed and the subsequent appeal before the Sub-Divisional Officer also did not yield any relief. In these circumstances, the plaintiffs has filed the Civil Suit seeking permanent injunction restraining the defendants from interfering with his peaceful possession. (e) The defendant No. 1 has filed his written statement denying the 4 plaint allegations in entirety. It is the specific defence of defendant No. 1 that the plaintiff has deliberately and mischievously included the defendant’s land within the disputed schedule without proper identification of khasra number, boundaries and demarcation. It is contended that the suit is vague and suffers from inherent defect of identification of property. The defendant asserts that he is the lawful owner in possession of land bearing Khasra No. 302/05, admeasuring 0.40 acres, which forms part of the larger Khasra No. 302, which has been subdivided into multiple plots and is recorded in the names of different tenure holders. It is further pleaded that the defendant is in peaceful, continuous and lawful possession over his land, over which he has already raised a residential pucca construction, after having acquired rights through his predecessor-in-interest, who had purchased the same in the year 1962. It is also stated that possession has been with the defendant and his family since prior to 1984. It is further contended that the plaintiff has failed to get his land properly demarcated or legally identified, and in absence of such demarcation, the exact location of alleged encroachment remains unascertained. The defendant thus submits that the suit is based on conjectures and incorrect pleadings, and is liable to be dismissed. (e) The defendant No. 2 has also filed a separate written statement denying the allegations made in the plaint. It is stated that the allegation of encroachment over approximately 0.05 acres is vague, uncertain and not supported by any cogent identification or revenue demarcation. The site plan filed by the plaintiffs is alleged to be incorrect and does not 5 reflect the actual ground situation. It is further stated that the plaintiffs had earlier initiated proceedings before the Tahsildar, Pandariya, wherein after due enquiry and spot verification, the application was rejected. The appeal preferred before the Sub-Divisional Officer was also dismissed, thereby concluding the revenue proceedings. It is contended that despite failure in revenue proceedings, the plaintiffs have again approached the civil court without establishing the exact identity of the alleged encroached portion. It is thus submitted that in absence of proper demarcation and identification of land, no cause of action arises in favour of the plaintiff, and the suit is liable to be dismissed. 4. On the basis of pleadings of the parties, the learned Trial Court framed the necessary issues for determination and proceeded to decide the suit on the basis of oral and documentary evidence adduced by both sides. The plaintiff examined Shubham Gupta (PW-1) and Kalesh Sahu (PW-2) and exhibited documents Ex. P-1 to Ex. P-12, whereas defendant No. 1 examined Tirathram (DW-1), Ram Nihora (DW-2) and Dhanesh (DW-3) and exhibited documents Ex. D-1 to Ex. D-11, while defendant No. 2 did not adduce any evidence. The plaintiff claimed permanent injunction in respect of land bearing Khasra No. 302/19 K alleging encroachment over about 0.05 acres, however PW-1 admitted that the disputed portion was not properly demarcated and the revenue records did not clearly establish its identity, while PW-2 also failed to support the specific identification or possession over the disputed area. The defendants denied any encroachment and asserted their independent possession over their respective land, particularly Khasra No. 302/05, supported by oral 6 and documentary evidence. On appreciation of the evidence, it was found that the plaintiff failed to establish clear identification and encroachment over the suit land, as the demarcation and revenue records remained inconclusive, and accordingly the suit was dismissed. 5. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiffs preferred a first appeal. The learned First Appellate Court, upon re-appreciation of the entire evidence on record, concurred with the findings recorded by the Trial Court and dismissed the appeal, affirming the judgment and decree of dismissal of the suit. Hence, the present Second Appeal has been preferred by the plaintiffs. 6. Learned counsel for the appellants submits that the impugned judgment suffers from non-consideration of material evidence on record and misappreciation of the factual matrix. It is contended that the dispute in the present case essentially relates to identification of the suit land, and in such a situation, proper identification through local investigation/ commission was necessary, particularly when the exact location and boundaries of the alleged encroached portion were not clearly established. It is further submitted that the revenue records and other documentary evidence indicating possession of the appellants have not been properly appreciated in their correct perspective, resulting in erroneous findings. It is also urged that the findings recorded are perverse as relevant material has been ignored and incorrect inferences have been drawn from the evidence on record. 7 7. I have heard learned counsel for the appellant on the question of admission and have carefully perused the impugned judgments and decrees passed by both the Courts as well as the material available on record. 8. At the outset, it is to be noted that the jurisdiction of this Court under Section 100 of the Code of Civil Procedure is confined to the examination of substantial questions of law. Interference with concurrent findings of fact recorded by the learned Trial Court and affirmed by the learned First Appellate Court is permissible only where such findings are shown to be perverse, based on no evidence or suffering from an error of law. 9. The case of the plaintiff was based on alleged encroachment by the defendants, whereas the defendants denied the same and asserted that they are in possession of their own adjoining land bearing separate khasra number. The evidence on record reveals that the identity of the alleged encroached portion was not clearly established for precise demarcation by the plaintiff. 10. The plaintiff’s witnesses, while supporting the claim in general terms, failed to establish clear and definite identification of the disputed portion. The admissions made in cross-examination further indicate that the boundaries and exact location of the alleged encroached land were not conclusively proved. The revenue documents and demarcation 8 material also do not clearly support the assertion that the defendants have encroached upon the plaintiff’s specific portion of land. On the contrary, the defence evidence indicates that the defendants are in possession of their own separate land and have raised construction thereon. The material on record does not establish with certainty that such construction falls within the khasra of the plaintiff. 11. In absence of clear identification of the disputed land and in absence of cogent evidence establishing encroachment, the findings recorded that the plaintiff failed to prove his case cannot be said to be either perverse or based on no evidence. The appreciation of evidence by the Courts below appears to be based on proper evaluation of the material available on record. 12. The contention regarding necessity of appointment of a commissioner also does not assist the appellants, as the burden to establish identity and encroachment was upon the plaintiff, which has not been discharged by leading clear and reliable evidence. 13. The arguments advanced on behalf of the appellant essentially seek re- appreciation of evidence and substitution of this Court’s view for that concurrently taken by both the Courts, which is impermissible in a Second Appeal. 14. It is well settled, as reiterated by the Supreme Court in State of Rajasthan and Others v. Shiv Dayal and Another, (2019) 8 SCC 637, that interference in second appeal with concurrent findings of fact is permissible only when such findings are shown to be based on 9 misreading of material evidence, contrary to pleadings, or such as no reasonable judicial mind could have arrived at. The appellant has failed to demonstrate that the findings recorded by the Trial Court and the First Appellate Court suffer from any such infirmity. 15. 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 :- “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 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., 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, 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 10 and, therefore, there was no occasion for it to have reappreciated the evidence so as to come to a different conclusion. 35. Again, in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by Lrs & Ors., 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. “ 16. The submissions advanced on behalf of the appellants essentially require reappreciation of evidence and substitution of a different factual view, which is impermissible within the limited jurisdiction under Section 100 of the Code of Civil Procedure. No perversity, misreading of evidence, or material irregularity in the approach of the findings has been demonstrated. Accordingly, no substantial question of law arises for consideration in the present appeal. 17. In view of the foregoing discussion, this Court finds no merit in the present Second Appeal in absence of any substantial question of law. Accordingly the Second Appeal is dismissed at the admission stage itself. No order as to costs. Sd/- (Bibhu Datta Guru) Judge Rahul/Gowri