[Cites 5, Cited by 0]
Chattisgarh High Court
Rakesh Kumar vs Dayachand on 30 March, 2026
1
2026:CGHC:14758
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 69 of 2021
Rakesh Kumar S/o Buchra, Aged About 43 Years Caste Rathore, R/o Village
RAHUL Patgawan, Tahsil Pendra, District Bilaspur Chhattisgarh. (Now District Gourela
JHA Pendra Marwahi) Chhattisgarh.
Digitally signed
by RAHUL JHA
Date: 2026.04.01
13:39:23 +0530
.Appellant(s)
versus
1 - Dayachand S/o Dhanpat, Aged About 35 Years By Caste Rathore, R/o
Village Patgawan, Tahsil Pendra, District Bilaspur (Chhattisgarh) (Now District
Gourela Pendra Marwahi) Chhattisgarh.
2 - Anil Kumar S/o Dhanpat, Aged About 28 Years By Caste Rathore, R/o
Village Patgawan, Tahsil Pendra, District Bilaspur (Chhattisgarh) (Now District
Gourela Pendra Marwahi) Chhattisgarh.
3 - Radha Bai, W/o Dhanpat, Aged About 60 Years By Caste Rathore, R/o
Village Patgawan, Tahsil Pendra, District Bilaspur (Chhattisgarh) (Now District
Gourela Pendra Marwahi) Chhattisgarh.
4 - Dhanpat S/o Buchra, Aged About 65 Years By Caste Rathore, R/o Village
Patgawan, Tahsil Pendra, District Bilaspur (Chhattisgarh) (Now District
Gourela Pendra Marwahi) Chhattisgarh.
5 - Baisakhu (Died) Through Lrs As Per Hon'ble Court Order Dated
14/11/2024
5.1 - Suresh Kumar S/o Late Baishakhu Aged About 50 Years R/o Village -
Patgawan Tah. Pendra, Distt. Gaurella Pendra Marwahi Chhattisgarh
6 - State Of Chhattisgarh Through Collector, Bilaspur (Chhattisgarh) (Now
District Gourela Pendra Marwahi) Chhattisgarh.
Respondent(s)
(Cause-title taken from Case Information System)
For Appellant(s) : Mr. Yogendra Chaturvedi and Ms. Najmi Begam,
Advocates
For Resp No. 1 to 4 : Mr. Malay Shrivastava, Advocate
For Resp No. 5.1 : Mr. Manoj Sinha, Advocate
For Resp. No. 6 : Mr. Anand Gupta, Dy. GA
Hon'ble Shri Justice Bibhu Datta Guru
Judgment on Board
30/03/2026
1. The present Second Appeal has been preferred under Section 100 of the
Code of Civil Procedure, 1908 by the plaintiff, who is the appellant
herein, challenging the judgment and decree dated 05/10/2018 passed in
Civil Appeal No. 40-A/2015 (Rakesh Kumar v. Dayachand & Others) by
the learned Additional District Judge, Pendra Road, Bilaspur (C.G.). By
the impugned judgment and decree, the First Appellate Court dismissed
the appeal filed by the plaintiff/appellant and affirmed the judgment and
decree dated 09/08/2017 passed in Civil Suit No. 40A/2013 (Rakesh
Kumar v. Dayachand & Others) by the learned Civil Judge, Class II,
Marwahi, District Bilaspur (C.G.), whereby the civil suit preferred by
the plaintiff/appellant was 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 plaintiff instituted the present civil suit for declaration of title
and partition in respect of land situated at Village Patgawa and Kudkai,
Tehsil Pendra, District Bilaspur (C.G.), bearing Khasra numbers 35/1,
408/6, 442/2, and 447/2, admeasuring 0.259 hectares, 0.113 hectares,
0.117 hectares, and 0.129 hectares respectively, having a total area of
0.618 hectares (hereinafter referred to as the "suit land"). It is pleaded
that the suit land along with other properties situated in Village Patgawa
and Village Kukai is ancestral in nature, originally held by the deceased
father of the plaintiff, who had inherited the same from his forefathers.
(b) It is further pleaded that the deceased had two wives, namely
Samudarbai and Jhamaiyabai. From Samudarbai, defendants no. 1, 2,
and 3 were born, whereas from Jhamaiyabai, the plaintiff and defendant
no. 4 were born. It is contended that the suit property being ancestral, the
deceased Bukhra had no legal right to alienate the same. It is further
alleged that defendant no. 4, taking advantage of the minority of the
plaintiff at the relevant time and the illiteracy and ignorance of the
deceased Bukhra, fraudulently got executed a registered sale deed in the
year 1987 in favour of his minor sons, i.e., defendants no. 1 and 2 and
another, without consideration and without following due process of law.
(c) It is further pleaded that the said transaction is false, forged, and
suspicious in nature. It is also stated that earlier defendant no. 5 had
instituted a suit in respect of the suit land against the plaintiff and
defendant no. 4, which was dismissed for want of prosecution, as it was
alleged that a compromise had been arrived at between defendant no. 4,
defendant no. 5, and the plaintiff that each would have 1/3 share in the
suit property.
(d) It is further alleged that defendant no. 4, taking undue advantage
of the illiteracy of the plaintiff, got the entire suit land mutated in favour
of his sons (defendants no. 1 and 2) in collusion with revenue
authorities, thereby conferring no valid or lawful title upon them. It is
stated that upon coming to know of the said facts, the plaintiff instituted
proceedings before the Tehsildar, Pendra Road, against defendants no. 1
and 2, being Case No. 64A-6/11-12. However, since the revenue court
has no jurisdiction to declare a registered sale deed as null and void, the
present suit has been instituted seeking appropriate declaratory and
partition reliefs.
(e) It is further pleaded that all the parties are in joint possession of
the suit property and that defendant no. 4 has raised construction over
5/14th portion of the land. It is stated that a well and a room exist over
the suit land, constructed from joint family funds, whereas the remaining
portion of the land is lying vacant and in possession of the respective
parties. It is further pleaded that one brother namely Sahasram has not
been impleaded as a party as he has already received his share in other
ancestral properties and has no concern with the suit land.
(f) The cause of action is stated to have first arisen in the year 2011
when the plaintiff obtained revenue records on 17.11.2011 from the
office of the Patwari, Village Patgawa, and has been continuing
thereafter within the jurisdiction of this Court. The plaintiff has filed
documentary evidence including settlement record of 1927-28 (Exhibit
P-1), Khatoni 2015-16 (Exhibit P-2), Khasra record (Exhibit P-3), map
(Exhibit P-4), and registered sale deeds dated 15.07.1987 and
16.07.1987 (Exhibits P-5 and P-6).
(g) On the other hand, defendants no. 1 to 4, while admitting only the
admitted facts, have denied the averments made in the plaint. It is
pleaded that the plaintiff has vaguely referred to other properties without
proper description. It is further pleaded that a mutual partition had taken
place in the year 1967 between Baisakhu, Sahasram, Dhanpat, and
Buchra, whereby each party came into possession of their respective
shares. It is further stated that it was agreed that if any son was born to
Buchra from his second wife, he would inherit his share.
(h) It is further pleaded that Buchra had lawfully executed sale deeds
from time to time as per necessity. It is also stated that the earlier suit
filed by defendant no. 5 was dismissed as during its pendency it was
acknowledged that the property had already been transferred by their
father in favour of defendants no. 1 and 2, and therefore no interference
was required. It is further contended that any alleged compromise of 1/3
share is not believable as Buchra had four sons.
(i) It is further stated that defendants no. 1 and 2 are bona fide
purchasers in possession on the basis of registered sale deeds and have
raised construction of houses and a well over the suit land. It is further
stated that the plaintiff and defendant no. 5 have never been in
possession. It is also objected that non-joinder of Sahasram renders the
suit defective. It is further pleaded that the suit is time-barred and
undervalued and is liable to be dismissed.
(j) Defendant no. 5 has supported the case of the plaintiff and
admitted the plaint averments. Defendant no. 6 has remained absent and
has been proceeded ex parte.
4. On the basis of the pleadings and evidence, the trial Court framed the
necessary issues and dismissed the suit holding that the plaintiff failed to
prove that the suit property is ancestral joint family property and that he
is entitled to 1/3 share therein. The Court found that no documentary
evidence was produced to establish the ancestral nature of the property,
while the oral evidence indicated that a partition had already taken place
in the year 1967 during the lifetime of Buchra, pursuant to which the
parties were in separate possession. The alleged condition regarding
inheritance from the second wife was not proved by any documentary
material. The Court further noted that the plaintiff failed to clearly plead
and prove the entire extent and details of ancestral holdings, and also
failed to implead all necessary co-sharers, particularly Sahasram,
resulting in non-joinder of necessary party. Although limitation,
valuation, and court fee were held to be proper, the suit was dismissed
on merits for failure to prove title and for non-joinder of necessary party.
Accordingly, the issues were decided against the plaintiff and the suit
was dismissed.
5. Aggrieved by the judgment and decree passed by the Trial Court, the
plaintiff preferred a first appeal before the Appellate Court. However, the
learned First Appellate Court, upon re-appreciation of the entire
evidence available on record, affirmed the findings recorded by the Trial
Court and dismissed the appeal by the impugned judgment, thereby
confirming the judgment and decree passed by the Trial Court. Hence,
the present second appeal has been filed.
6. Learned counsel for the appellant submits that the finding that the suit is
barred by res judicata is legally unsustainable, as the essential conditions
for its application are not satisfied. It is contended that there was no prior
adjudication on merits between the same parties in respect of the same
cause of action and subject matter, and therefore the said finding cannot
be sustained in law. It is further submitted that the finding regarding
alleged partition of the year 1967 has been recorded without any
substantial or cogent evidence. Learned counsel contends that there is no
documentary proof of partition such as partition deed or reliable revenue
records, and the conclusion has been drawn merely on oral assertions
which are inconsistent and insufficient in law. It is also submitted that
the First Appellate Court erred in rejecting the application under Order
XLI Rule 27 CPC for taking additional evidence on record. According to
learned counsel, the documents sought to be produced were material and
necessary for proper adjudication of the dispute. The rejection on the
sole ground of non-production before the trial stage, without considering
the relevance and necessity of the documents, is stated to be unjustified
and contrary to the settled principles governing additional evidence. It is
therefore prayed that the impugned findings be set aside and the appeal
be allowed.
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. Upon consideration of the material available on record, it is evident that
the plaintiff's claim is founded on the plea that the suit property is
ancestral and that he is entitled to 1/3 share therein. However, both the
findings record that the plaintiff failed to establish the ancestral nature of
the property by any reliable documentary evidence. On the contrary, the
evidence on record indicates that a partition had already taken place in
the year 1967 during the lifetime of Buchra, whereby the parties were
placed in separate possession of their respective shares.
10. It is further noticed that the plaintiff himself examined witnesses who
admitted in cross-examination that such partition had taken place and
that the parties were in separate possession thereafter. In absence of any
documentary evidence to dislodge the said position, the concurrent
finding regarding prior partition cannot be said to be perverse. The plea
that the property remained joint is therefore not substantiated by reliable
evidence.
11. So far as the contention relating to res judicata is concerned, the finding
recorded by the learned First Appellate Court and the conclusion drawn
by it that the suit was also barred by the principles of res judicata and
the appellant herein failed to demonstrate that the essential ingredients of
res judicata were not attracted in the Civil suit filed by the plaintiff.
12. With regard to rejection of the application under Order XLI Rule 27
CPC, it is apparent that the appellant failed to establish that the
documents sought to be produced were not within his knowledge or
could not be produced despite due diligence before the trial stage. The
First Appellate Court, therefore, committed no error in declining the
prayer for additional evidence.
13. The submission seeking to introduce additional documents at the stage of
appeal cannot be accepted as a matter of course. The appellate Court
cannot permit a party to fill up lacunae in its case by producing fresh
evidence at a belated stage, particularly when the trial has already
concluded and findings have been recorded on appreciation of evidence
on record.
14. As far as the submission of learned counsel for the appellant/plaintiff
with regard to production of certain documents in this appeal is
concerned, such permission cannot be granted as a matter of course, nor
can additional evidence be introduced at the whim or convenience of a
litigating party. In fact, the general principle is that the appellate Court
should not travel outside the record of the trial Court as well as the First
Appellate Court and cannot take any evidence in an appeal under Section
96 of the CPC. It is noteworthy to mention here that once trial had
concluded and the decree was under challenged in an appeal, the
appellants cannot be permitted to fill the gaps in their case by seeking to
adduce further material to fortify the claim that was fundamentally
flawed. (See: Gobind Singh and Ors. v Union of India and Ors. (Civil
Appeal Nos.5168-5169 of 2011 decided on 9-3-2026).
15. The arguments advanced on behalf of the appellant essentially seek re-
appreciation of evidence and substitution of a different view in respect of
findings concurrently recorded on facts. Such an exercise is
impermissible in a second appeal under Section 100 CPC.
16. 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
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.
17. Accordingly, the findings that the plaintiff failed to establish that the suit
property is ancestral joint family property and his entitlement to 1/3
share therein, as well as the findings regarding prior partition of the year
1967 and non-joinder of necessary party, are findings of fact based on
proper appreciation of the evidence and do not give rise to any
substantial question of law.
18. Consequently, the present Second Appeal is hereby dismissed at the
admission stage itself.
Sd/-
(Bibhu Datta Guru)
Judge
Rahul/Gowri
