Bhanu Sahu vs Smt. Sejabai
2025 Latest Caselaw 1327 Chatt

Chattisgarh High Court

Bhanu Sahu vs Smt. Sejabai on 21 January, 2025

                              1




                                                   2025:CGHC:3777
                                                             NAFR
    HIGH COURT OF CHHATTISGARH AT BILASPUR
                    SA No. 386 of 2020
1. Bhanu Sahu S/o Late Latelu Sahu Aged About 49 Years R/o
  Village Jaraunda, Post Tarra, Tahsil And District Raipur,
  Chhattisgarh., District : Raipur, Chhattisgarh
                                                       ... Appellant
                                                           (Plaintiff)
                           versus
1. Smt. Sejabai W/o Late Mahadev Sahu Aged About 70 Years
  R/o Village Jaraunda, Post Tarra, Tahsil And District Raipur,
  Chhattisgarh.
2. Smt. Savitri Bai W/o Sri Mohit Sahu Aged About 40 Years R/o
  Village Dhansuli, Post Baradera, Tahsil And District Raipur,
  Chhattisgarh.
3. Keshav Sahu S/o Late Mahadev Sahu Aged About 38 Years
  R/o Village Jaraunda, Post Tarra, Tahsil And District Raipur,
  Chhattisgarh.
4. Punit Sahu S/o Late Mahadev Sahu Aged About 36 Years R/o
  Village Jaraunda, Post Tarra, Tahsil And District Raipur,
  Chhattisgarh.
5. Biharilal Sahu S/o Late Mahadev Sahu Aged About 26 Years
  R/o Village Jaraunda, Post Tarra, Tahsil And District Raipur,
  Chhattisgarh.
6. Smt. Bhanmati D/o Late Latelu Sahu Aged About 45 Years
  W/o Hiralal, R/o Village And Post Deori, Tahsil Dharsiwan,
  District Raipur, Chhattisgarh.,
                                      2

  7. Mansaram Sahu S/o Late Latelu Sahu Aged About 43 Years
     R/o Village Jaraunda, Post Tarra, Tahsil And District Raipur,
     Chhattisgarh.
  8. Smt. Jamwati Sahu W/o Ramnarayan Sahu Aged About 42
     Years R/o Village Jaraunda, Post Tarra, Tahsil And District
     Raipur, Chhattisgarh.
  9. Smt. Jamin Bai D/o Late Latelu Sahu Aged About 40 Years
     R/o Village Kurra, Post Kurra, Tahsil Dharsiwan, District
     Raipur, Chhattisgarh.
  10. State Of Chhattisgarh Through Collector, Raipur, District
     Raipur, Chhattisgarh.
                                                   ... Respondents

(defendants)

For Appellant : Mr. Sunil Verma, Advocate For Respondent No.1 to 5 : Mr. Parag Kotecha, Advocate For Respondent No.10 : Ms. Mandavi Bharadwaj, Panel Lawyer SB:Hon'ble Mr. Justice Parth Prateem Sahu Judgment on Board 21.1.2025

1. Heard on admission.

2. This is a plaintiffs' second appeal against the judgment and

decree dated 5.3.2020 passed in Civil Appeal No.11A/2019 by

which learned 2nd Additional District Judge, Raipur has

affirmed the judgment and decree dated 16.9.2019 in Civil

Suit No.58A/2016 by which learned 3rd Civil Judge Class-1

Raipur dismissed the suit of plaintiff/appellant herein. For the

sake of convenience, the parties shall be referred hereinafter

as per their original status.

3. Facts of the case, in brief, are that plaintiff filed a civil suit

seeking relief of specific performance of contract, declaration

and permanent injunction against the defendants, stating that

in the year 1982, Mahadev Sahu, father of defendant No.1 to

5, had entered into an oral agreement with Latelu, father of

plaintiff and defendant Nos.6 to 9, to sell the land bearing

Khasra No.280/2 area 3 decimal, situate in village Jaronda,

PH No.1, RI Circle Dharsiva, District Raipur (for short 'the suit

land') and after receipt of sale consideration, handed over

possession of the suit land. During his lifetime, said Latelu

under an oral family arrangement had given the suit land to

the plaintiff over which he has constructed a house in the

year 1997 and since then he is in continuous peaceful

possession of the same. Latelu Sahu continuously requested

Mahadev for execution of sale deed and in this regard, also

called the meeting of panchayat on 16.1.1996 in which

Mahadev acknowledged the ownership and possession of

Latelu Sahu, based on which Mahadev was directed by

Panchayat to execute sale deed and complete the mutation

proceeding. However, even after the decision of Panchayat,

said Mahadev avoided execution of sale deed on one pretext

or another for the reasons best known to him. In the

meantime, Mahadev and Latelu both died. After the death of

his father, the plaintiff based on decision of panchayat,

requested the defendants No.1 to 5 to execute the sale deed

but on one pretext or other they avoided execution of sale

deed. Therefore, plaintiff sent legal notice through his

advocate on 21.1.2016, which has been duly served on the

defendants No.1 to 5, but they have neither replied the notice

nor taken any step for execution of the sale deed in favour of

plaintiff.

4. Defendants No.1, 3, 4 & 5 have filed their written statements,

denied the averments made in the plaint and prayed for

dismissal of suit. They have denied sale of suit land, receipt

of payment, delivery of possession of suit land to the father of

plaintiff and its acknowledgment in the meeting of panchayat.

It was also denied that father of plaintiff during his lifetime was

in use and enjoyment of suit land. They have denied that a

meeting of panchayat was convened in which their father was

directed to complete the proceeding of registration and

mutation. In the said meeting, a decision duly signed by the

Sarpanch, Panch and villagers of Gram Panchayat Jarondh

was handed over to the plaintiff's father. It was further

contended that Gram Panchayat has no right to pass such an

order and if any such order is passed, the same is forged and

flimsy and not binding on these defendants. Plaintiff is trying

to somehow grab the ownership land of the defendants. It

was further pleaded that alleged transaction is of the year

1982 and decision of gram panchayat is dated 16.1.1996,

therefore, the plaintiff ought to have filed the civil suit within a

period of three years thereafter. However, the plaintiff has

filed civil suit after lapse of 34 years, therefore, the suit being

barred by limitation is liable to be dismissed.

5. Defendant No.6, 8 & 9 also filed their written statement

denying the pleadings made in the plaint.

6. On the basis of pleadings of both the parties, the trial Court

framed as many as four issues; upon appreciation of the

evidence, the trial Court vide judgment and decree dated

16.9.2018 dismissed the suit filed by plaintiffs. Civil Appeal

preferred against the judgment of trial Court is also dismissed

vide impugned judgment and decree.

7. Learned counsel for appellant would argue that both courts

failed to appreciate that the plaintiff had discharged the onus

and successfully proved by exhibiting Ex.P-1 that there was

oral agreement for the sale of suit property and pursuant

thereto the possession was delivered to predecessor of

plaintiff. Once it has been proved by documentary evidence,

the trial Court ought to have decreed the suit of the plaintiff for

specific performance of contract.

8. Heard learned counsel for the appellant on admission and

perused the record.

9. On perusal of record, it is seen that both the learned courts

have considered all the pleadings, evidence in detail and

there is nothing on law or fact which needs consideration in

this Second Appeal. Regarding the question whether the

plaintiff is entitled for decree of specific performance of oral

sale agreement, it is seen from the record that fact of alleged

oral agreement, which is executed in the year 1982, is sought

to be proved by producing document Ex.P-1, which is

document of the Gram Panchayat, and examining himself as

PW-1 and other witnesses as PW-2 to PW-5.

10. A bare reading of Ex.P-1 reveals that a meeting of gram

sabha was convened on 16.1.1996 in Gram Panchayat

Building in which decision with respect to land dispute

between Latelu and Mahadev was pronounced. Even after

receipt of amount, when Mahadev refused to register sale

deed in favour of Latelu, he has called the meeting. In this

meeting, Mahadev admitted to have sold the suit land to

Latelu, received amount towards sale of his land and also

delivered possession. This document is signed by the

Sarpanch, Panch and Members of Gram Sabha. However,

this document Ex.P-1 does not contain signature of Mahadev

and absence of the signature of said Mahadev on this

document creates doubt about his presence in this meeting

as also existence of any oral agreement of sale of suit land

between the parties and as such, Ex.P-1 cannot be said to be

final and binding on the parties.

11. Further, scrutiny of statement of plaintiff and his witnesses

would show that they are making contradictory statements

with regard to the document Ex.P-1. From the evidence of

plaintiff and witnesses examined on behalf of plaintiff it is

appearing that since Mahadev, predecessor of defendants

No.1 to 5, refused to execute the sale deed, plaintiff's father

Latelu had called a meeting of Panchayat and in that meeting,

the document of Ex.P-1 was reduced into writing mentioning

the fact of deal of suit land between Latelu and Mahadev. As

per plaintiff, Ex.P-1 was executed on 16.1.1996 but perusal

of Ex.P-1 would reveal that it bears date '8.2.96' just below

the signature of Sarpanch of Gram Panchayat Jaronda.

12. PW-2 Ramkhilawan Verma, scriber of Ex.P-1, has stated in

Para-11 of his cross-examination that he has written the

document of Ex.P-1 in the meeting called by Latelu Sahu on

16.1.1996. In this paragraph itself, this witness has admitted

that he has written this document on 8.2.1996. He has further

admitted that Ex.P-1 was prepared on 16.1.1996 but signed

on 8.2.1996 at the instance of Latelu in the house of village

Kotwar.

13. PW-3 Sukhiram has stated in Para-11 of his cross-

examination that meeting of gram sabha was held on

8.2.1996, not on 16.1.1996, however, thereafter he improvise

and stated that meeting was called on 16.1.1996. PW-4 Ajit

Kumar Verma has stated that Latelu had called two meetings

of gram sabha, firstly on 16.1.96 and thereafter on 8.2.1996,

and document Ex.P-1 was reduced into writing in the second

meeting of gram sabha held on 8.2.1996.

14. Further, there is contradiction in the statement of plaintiff's

witnesses as to when and at which place the document

Ex.P-1 was reduced in writing. In the cross-examination, the

plaintiff's witnesses have admitted that said transaction of

sale of land was not taken place in their presence.

15. The legal position is not in dispute that mere production and

marking of a document as exhibit by the court cannot be held

to be a due proof of its contents. Its execution has to be

proved by admissible evidence that is by the 'evidence of

those persons who can vouchsafe for the truth of the facts in

issue'.

16. Thus, from the totality of facts and evidence, as discussed

above, it is clear that the plaintiff failed to prove that there was

oral agreement and he is entitled to be decree for specific

performance of contract on the basis of document Ex.P-1

only, because the plaintiff failed to prove due execution of the

Ex.P-1 by adducing evidence of those persons who can

vouchsafe for the truth of the facts mentioned in Ex.P-1. This

being the position, the trial Court has correctly mentioned in

Para-17 of its judgment that the document Ex.P-1 is

surrounded with suspicion.

17. That apart, alleged oral agreement between Mahadev and

Latel was entered in the year 1982 and payment of sale

consideration was paid. Mahadev continued to live for around

10 years after said oral agreement and during his life time,

plaintiff's father never took any step to get the sale deed

registered in his favour. Admittedly, the suit for specific

performance was filed after more than 30 years. Hence, the

civil suit does not fulfill the requirement of the provisions of

the Specific Relief Act, therefore, both the Courts below have

not committed any error of law while dismissing the suit for

specific performance.

18. Regarding the contention of plaintiff that he is in long

possession of the suit land, therefore, he is entitled for grant

of decree of declaration and permanent injunction, all the

documents filed by the plaintiff as well as the defendants,

would show that it is the defendants concerned whose names

are recorded in the land records and they are in possession of

the suit land. Plaintiff has not at all produced any

documentary evidence i.e. valid title deed or agreement etc.,

in order to prove his lawful possession over the suit property.

Except oral testimony of plaintiff's witnesses, there is no

material available on record. As such, plaintiff does not

acquire any right or interest whatsoever for himself in the suit

property irrespective of his long stay or possession. It is well

settled that one who approaches the Court should prove his

lawful possession over the suit property, then only his

possession will be protected. Since the plaintiff failed to prove

that he is in lawful possession of the suit property as on the

date of filing of suit, the question of interference by the

defendants does not arise.

19. Furthermore, mere on the ground of long possession, plaintiff

cannot acquire any right or interest whatsoever for himself in

the suit land, especially when the defendants have objected

to the same by moving an application before the Naib

Tashildar. Defendants have also placed sufficient evidence

on record including khasra entries to show that they were in

possession of the suit-property. Therefore, the plaintiff cannot

be said to be in lawful possession of the suit-property from the

year 1982, as was urged on his behalf.

20. As regards rejection of application under Order 41 Rule 27

CPC filed on behalf of plaintiff at the first appellate stage, with

intent to bring on record water tax receipts etc. The first

appellate Court rejected said application holding that plaintiff

failed to explain the reason for not producing the documents

sought to be adduced as additional evidence before trial

Court although the same was in his possession and

knowledge.

21. For accepting the application under Order 41 Rule 27 of CPC,

the party has to first establish and meet the requirements as

envisaged under Order 41 Rule 27 CPC. Unless the

requirement so envisaged has been met by the party seeking

to produce additional evidence, the document cannot be

taken as additional evidence. The requirements are that the

trial Court had refused to admit the additional evidence; the

evidence was not available despite the exercise of due

diligence; and the evidence is required by the Court to

effectively adjudicate the dispute pending before it.

22. In case of Jagdish Prasad Patel vs Shivnath, reported in

(2019) 6 SCC 82, Hon'ble Supreme Court observed thus:-

"29. Under Order 41 Rule 27 CPC, the production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are:

(I) where the trial court had refused to admit the evidence though it ought to have been admitted;

(II) the evidence was not available to the party despite the exercise of due diligence; and

(III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

An application for the production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents."

23. In case of Sanjay Kumar Singh vs. State of Jharkhand,

reported in (2022) 7 SCC 247, Hon'ble Supreme Court while

dealing with issue of admissibility of additional evidence in

appellate Court not adduced in the Court of original

jurisdiction, has observed thus:-

"7.It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the

appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature."

24. In present case, from perusal of contents of application under

Order 41 Rule 27 CPC, the plaintiff pleaded that due to

inadvertence, could not file the said document before the trial

Court to show that he is in possession of suit land by

constructing a house thereon. Therefore, plaintiff prayed that

the said document be taken on record. The document sought

to be produced by plaintiff as an additional evidence are

payment receipts of water tax etc. paid by plaintiff to the Gram

Panchayat Jaronda, which are of the period prior to filing of

the suit. Thus, it is clear that the plaintiff was in possession

and had the knowledge about the receipts of water tax etc. at

the time of filing of civil suit, but for the reasons best known to

him, he did not produce the same before trial Court. Except

mentioning 'due to inadvertence' in the application, any

justification / plausible reason has not been offered by the

Plaintiff which prevented him from producing this document

before the trial Court. In my considered view, this is no ground

at all for acceptance of additional evidence. In case of

Haryana State Industrial Development Corporation vs.

Cork Manufacturing Co. reported in (2007) 8 SCC 120, the

Hon'ble Supreme Court has held that inadvertence to produce

the evidence or improper legal advice is no reason for

admitting the additional evidence. Para-18 of the said

judgment is quoted below for ready reference:-

"18. In any view of the matter, Order 41 Rule 27 of the CPC also does not empower an appellate court to accept additional evidence on the ground that such evidence could not be produced or filed either before the trial court or before the first appellate court due to inadvertence or lack of proper legal advice. Mr. Mohan, learned Additional Solicitor General however sought to argue that the pleadings made in the application for acceptance of additional evidence would come within the meaning of "substantial cause" under Order 41 Rule 27 (1)

(b) of the CPC which would require the appellate court to accept the legal notice in order to pronounce its judgment. We are unable to accept this submission of Mr Mohan. In our view, lack of proper legal advice or inadvertence to produce the legal notice in evidence is not a ground to hold that there was substantial cause for acceptance of the additional evidence."

25. In case of Union of India vs. Ibrahim Uddin, reported in

(2012) 8 SCC 148, it was observed that:-

"40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause"

within the meaning of this of Rule. The mere fact that certain evidence is important, is not in itself a

sufficient ground for admitting that evidence in appeal."

26. Even, the documents i.e. water tax payment receipts, which

were filed on behalf of plaintiff before the first appellate Court

by way of application under Order 41 Rule 27 of CPC do not

establish title of the plaintiff over the suit land, therefore, these

documents cannot be considered as the documents of title

with regard to suit land. These documents at the most can

only show that plaintiff is in possession of the suit land,

therefore, they cannot be considered in support of the

plaintiff's plea of acquisition of title. Furthermore, plaintiff

having failed to establish his title over the suit land by bringing

on record cogent and clinching evidence, it cannot be said

that the documents sought to be produced as additional

evidence by respondent No.1/plaintiff has a direct bearing on

the issue in dispute and are necessary to pronounce a

satisfactory and effective judgment in the case.

27. In view of above, the reason assigned by the learned First

Appellate Court for dismissing the application filed under

Order 41 Rule 27 of CPC that the plaintiff failed to furnish any

plausible explanation, was a valid reason duly supported by

the law and needs no interference.

28. In the case of C. Doddanarayana Reddy and others vs. C.

Jayarama Reddy and others, reported in (2020) 4 SCC 659,

the Hon'ble Apex Court has observed and held as under :-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karanataka Board of Wakf v. Anjuman- E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

14.In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by

the first appellate court was based on no material."

15. And again in Taliparamba Education Society v. Moothedath c Mallisseri Illath M.N. (1997) 4 SCC 484, this Court held: (SCC p. 486, para 5)

'5.... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.' "

29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of fact."

29. In the case of State of Rajasthan and Ors. vs. Shiv Dayal

and Ors. reported in (2019) 8 SCC 637 Hon'ble Supreme

Couert has observed and concluded thus:-

"16. 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 it was based on no evidence or it was 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. (See observation made by learned Judge, Vivian Bose, J., as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117].

17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."

30. In view of above decision of Hon'ble Supreme Court it is

manifest that this Court in exercise of power under Section

100 of CPC will not interfere with the concurrent findings of

facts unless and until the same are shown to be perverse or

de hors the material available on record or without any

evidence.

31. Considering the facts and circumstances of the case noted

above, coupled with the reasons aforementioned, this Court is

of the considered view that the first appellate court as well as

trial court did not commit any mistake in holding that the

plaintiffs are not entitled for decree of specific performance of

oral sale agreement in respect of suit land. Even, during the

course of arguments, learned counsel for appellant could not

point out any patent illegality or perversity in either of the

impugned judgments passed by both the Courts. He also

could not refer to any question of law much less substantial

question of law nor any such question of law has been found

involved in the present appeal, which is sine qua non for

entertaining regular second appeal. Accordingly, it is held

that no substantial question of law arises in this appeal for

adjudication and as a consequence thereof, the judgment and

decree passed by the appellate court as also trial court are

hereby affirmed.

32. The second appeal is accordingly dismissed. Decree be

drawn up accordingly.

SYED
ROSHAN                                                       Sd/-
ZAMIR
ALI                                                  (Parth Prateem Sahu)
Digitally                                                    Judge
signed by
SYED
ROSHAN
ZAMIR ALI   roshan/-