[Cites 6, Cited by 0]
Chattisgarh High Court
Chainbati vs Budhayarin Bai on 27 February, 2026
1
SOURABH 2026:CGHC:10227
BHILWAR
Digitally signed by
SOURABH BHILWAR
Date: 2026.02.27 NAFR
18:18:09 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 494 of 2018
1 - Chainbati W/o Shri Ramgopal, Aged About 51 Years R/o Village
Khamhariya (Saldha), Tahsil Berla, District Bemetara (Chhattisgarh)
2 - Devseer Wd/o Late Shri Ramu Dhobi, Aged About 74 Years R/o
Village Sandi, Tahsil Berla, District Bemetara Chhattisgarh.
... Appellant(s)
versus
1 - Budhayarin Bai W/o Shri Punuram, D/o Late Shri Ramu Dhobi (As
Claimed In Plaint) Aged About 60 Years Village Sarora, Tahsil Tilda,
District Raipur Chhattisgarh.
2 - State Of Chhattisgarh Through The Collector Bemetara, District
Bemetara Chhattisgarh.
.... Respondent(s)
(Cause title is taken from CIS)
For Appellant(s) : Mr. Rishi Rahul Soni, Advocate
For Respondent/State : Mr. Santosh Soni, Govt. Advocate
Hon'ble Shri Justice Bibhu Datta Guru
Judgment on Board
27/02/2026
1. On the last date of hearing i.e. 13/01/2026, at the request of
learned counsel for the appellants, the matter was referred to the
Mediation and Conciliation Centre of this Court. However, as per
report dated 20/02/2026 of the Mediation Centre, it appears that
due to absence of both the parties, the mediation proceedings
could not be commenced. Accordingly, this Court proceeds to
hear the matter on the question of admission.
2. The present Second Appeal has been filed by the defendants
under Section 100 of the Code of Civil Procedure, 1908, assailing
the impugned judgment and decree dated 27.06.2018 passed by
the learned District Judge, Bemetara, District Bemetara (C.G.) in
Civil Appeal No. 13-A/2017 (Chainbati & Anr. vs. Budhayarin Bai &
Anr.), affirming the judgment and decree dated 16.05.2017
passed by the learned Second Civil Judge, Class-I, Bemetara
(C.G.), in Civil Suit No. 36-A/2016 (Budhayarin Bai vs. Chainbati
& Ors.), whereby the civil appeal filed by the defendants/
appellants herein was dismissed. For the sake of convenience,
the parties shall hereinafter be referred to as per their status
before the Trial Court.
3. The plaintiff filed the suit seeking declaration of title, partition,
separate possession and permanent injunction, pleading inter alia
that late Dukalu had one son Ramu and one daughter Kejabai, all
of them have died and the ancestral land situated at Village
Sandi, P.H. No. 11, bearing Khasra Nos. 1606 admeasuring 0.25
hectare and khasra No.1989 admeasuring 0.57 hectare, total 0.82
hectare, stood recorded in their names. It was pleaded that the
plaintiff is the daughter born from the lawful marriage of Ramu
with Kunwar Bai performed in accordance with Hindu rites and
customs, and thus entitled to half share in the suit property. After
the death of Ramu and Kejabai, the defendants, without any
lawful right, got the mutation of the suit land effected exclusively in
their names vide Mutation Case No. 46 dated 13.08.2012,
ignoring the plaintiff's legitimate share. It was further pleaded that
during their lifetime Ramu and Kejabai had executed a registered
sale deed in February 1999 in favour of Keshoram in respect of
other ancestral lands with the intention of defeating the plaintiff's
rights. The plaintiff asserted that despite demand for partition, the
defendants avoided the same and unlawfully retained exclusive
possession, thereby necessitating the filing of the present suit.
4. Per contra, Defendant Nos.1 and 2, in their written statement,
denied the claim of the plaintiff and contended that the plaintiff's
mother, Kunwar Bai, never resided with deceased Ramu as his
lawful wife and had left his house within two months of marriage
without sufficient cause and subsequently contracted marriage
with another person. It was pleaded that the mutation proceedings
were carried out strictly in accordance with the order of
succession and lawfully recorded in their names, as the plaintiff
does not fall within the category of legal heirs entitled to
inheritance. The defendants asserted that the plaintiff has no
right, title, or share in the ancestral land situated at Village Sandi
and is not entitled to seek partition. It was further contended that
the plaintiff failed to implead Keshoram, the purchaser of lands
bearing Khasra Nos. 1944 and 764, and did not include the said
lands in the schedule of the plaint. The defendants denied that the
plaintiff ever demanded partition or visited Ramu's house for such
purpose. Accordingly, they prayed for dismissal of the suit.
5. After framing the issues and upon due appreciation of the oral as
well as documentary evidence available on record, the learned
Trial Court allowed the suit filed by the plaintiff, holding that the
plaintiff has established her claim over the suit land. Aggrieved by
the said judgment and decree dated 16/05/2017, the defendants
No.1 & 2 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.
6. Learned counsel for the appellants submits that the impugned
judgments and decrees passed by both the learned Courts are
perverse, contrary to law, and unsustainable on the face of the
record. He submits that there is no cogent or documentary
evidence to establish that the plaintiff is the daughter of late Ramu
Dhobi, yet the learned Courts erroneously recorded findings in her
favour and wrongly shifted the burden of proof upon the
appellants. He further submits that the evidence on record clearly
indicates that Kunwar Bai had left the matrimonial home long ago
and there is no proof that the plaintiff was ever in joint possession
of the suit land or had demanded partition during the lifetime of
Ramu Dhobi, rendering the suit barred by limitation. According to
learned counsel, the findings recorded suffer from illegality and
perversity, giving rise to substantial questions of law warranting
interference in the present appeal.
7. I have heard learned counsel for the appellants 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.
8. In the present case, both the learned Trial Court as well as the
learned First Appellate Court, upon due appreciation of the
pleadings and the oral and documentary evidence available on
record, have concurrently held that the plaintiff is the daughter of
late Ramu Dhobi born out of his lawful marriage with Kunwar Bai.
This fact has been duly established by the birth register extract
(Ex.P-3) dated 09.06.1948, which is more than 30 years old and
therefore carries a statutory presumption under Section 90 of the
Indian Evidence Act. Both the Courts have further recorded a
categorical finding that the suit land bearing Khasra Nos. 1606
and 1989, is ancestral property, as admitted by the defendants. It
has been held that upon the death of Ramu, the plaintiff, along
with other legal heirs, succeeded to the property and accordingly
she is entitled to 1/3rd share therein. While declining the claim of
half share, the Courts have granted declaration of 1/3 rd ownership
in favour of the plaintiff along with a decree for partition, separate
possession, and permanent injunction restraining the defendants
from interfering with her lawful share. The concurrent findings are
based on proper appreciation of evidence and settled principles of
succession law, and no perversity or substantial question of law
arises warranting interference under Section 100 of the Code of
Civil Procedure.
9. 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.
10. 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
No.1 & 2 failed to establish their case by placing cogent and
sufficient material. The appellants failed to demonstrate any
perversity, illegality, or misapplication of law in the findings so
recorded.
11. 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.
12. 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.
13. 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.
14. 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 as well as by the learned First Appellate Court are just
and proper and there is no illegality and infirmity at all.
15. Having heard learned counsel for the appellants and 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.
16. Accordingly, the Second Appeal fails and is hereby dismissed in
limine resulting in upholding of the judgment and decree of the
trial Court as well as the Appellate Court.
Sd/-
(Bibhu Datta Guru)
Judge
$. Bhilwar
