Nagar Panchayat, Rajim Vs Smt. Tarabai

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2025:CGHC:54786

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 02 of 2016

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Reserved on : 21.07.2025

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Delivered on : 11.11.2025

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1 - Nagar Panchayat, Rajim Through Chief Municipal Officer, Nagar Panchayat Rajim, P. S. Rajim, District Gariyabandh, Chhattisgarh 2 - Jethoo Koshre S/o Muniram, Aged About 30 Years Rajim P. S. Rajim, District Gariyabandh Chhattisgarh.

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3 - Lala Sahu S/o Parsuram, Aged About 32 Years Shiksha Guarantee School, Sahispara, Rajim, P. S. Rajim, District Gariyabandh Chhattisgarh.

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4 - Ramapati Yadav S/o Punit Parshad, Aged About 32 Years Nagar Palik Nigam Rajim, P. S. Rajim, District Gariyabandh Chhattisgarh.

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5 - Bhagwat Lal Yadu, S/o Ramprasad, Aged About 55 Years Adhyaksh, Kisan Sewa Samiti Unregistered Rajim, P. S. Rajim, District Gariyabandh Chhattisgarh.

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6 - Bhuwneshwar Lal Sahu S/o Amar Singh, Aged About 65 Years Rajim, P. S. Rajim, District Gariyabandh Chhattisgarh.

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7 - Bisauha Bhoi S/o Khorbahra, Aged About 52 Years Rajim, P. S. Rajim, District Gariyabandh Chhattisgarh.

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8 - Punitram Nishad S/o Phoolsingh, Aged About 50 Years Rajim, P. S. Rajim, District Gariyabandh Chhattisgarh.

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... Appellant (s)

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versus

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1 - Smt. Tarabai W/o Shri Shantilal Parekh, R/o Near Mahamaya Mandir, Raipur, District Raipur Chhattisgarh.

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2 - Shri Satish Parekh S/o Shri Shantilal Parekh, R/o Near Mahamaya Mandir, Raipur, District Raipur Chhattisgarh.

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3 - Sanjay Parekh S/o Shri Shantilal Parekh, R/o Near Mahamaya Mandir, Raipur, District Raipur Chhattisgarh.

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4 - Motilal Jain S/o Shri Ghewar Chand Jain, R/o Rajim, Tahsil Rajim, District Gariyabandh Chhattisgarh.

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5 - State of Chhattisgarh Through Collector, Gariyabandh, District Gariyabandh Chhattisgarh.

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Digitally signed by ARUN ARUN KUMAR KUMAR DEWANGAN DEWANGAN Date: 2025.11.11 16:28:55 +0530

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... Respondent(s)

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For Appellants : Mr. B.P. Gupta & Mr. Vivek Verma, Advocates. For Res. No. 1 to 4 : Mr. Ravikar Patel, Advocate. For State/Res. No. 5 : Mr. Kalpesh Ruparel, Panel Lawyer.

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Hon'ble Shri Justice Narendra Kumar Vyas

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CAV JUDGMENT

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This second appeal has been filed by the defendants under Section 100 of the C.P.C. against judgment and decree dated 05.02.2015 passed by Additional District Judge, Gariyaband, District- Gariyaband (C.G.) in Civil Appeal No. 14-A/2013 (Smt. Tarabai & others Vs. Nagar Panchayat Rajim & others) by which the appeal preferred by the plaintiffs have been allowed and the judgment and decree dated 18.10.2013 passed by Civil Judge Class-II, Rajim, District- Gariyaband (C.G.) in Civil Suit No. 63-A/2008, has been set aside.

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For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 63-A/2008.

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The instant Second Appeal has been admitted for hearing by this Court vide order dated 28.04.2025 on following substantial questions of law:-

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Whether the learned First Appellate Court was justified in reverting the well reasoned finding recorded by the trial Court dismissing the suit of the plaintiff on the count that the plaintiff has failed to prove his title?

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Whether the Appellate Court was justified in recording a finding regarding sale of suit land through auction by auctioner?

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This Court on 27.07.2025 after hearing the parties, has framed an additional substantial question of law which reads as under:-

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Whether without issuing notice to the Nagar Panchayat, the suit

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filed by the plaintiff was maintainable in view of rider contained in Section 319 of the Chhattisgarh Municipality Act, 1961?

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The brief facts, as reflected from the plaint averments are that the plaintiffs filed a civil suit on 17.11.2003 for restraining defendant No. 1/Nagar Panchayat, Rajim from taking action to acquire the Abadi land bearing Khasra No. 47 area admeasuring 0.29 acre situated near Mahamaya temple, Rajim (hereinafter referred to as “the suit property”) and also restraining defendant No. 1 from evicting the plaintiffs from the suit property mainly contending that:-

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(A) The suit property is in their ownership rights and possession as earlier the Post and Telegraph Department of Central Government has constructed a building over the suit property and the same was auctioned by the department which has been purchased by one Askaran S/o Maniklal Bangani from the Postal Department for sale consideration of Rs. 1675/- on 25.03.1953 and later on the same was sold to the plaintiffs by him by registered sale deed dated 28.02.1962 for sale consideration of Rs. 500/-. Since then they are in possession of the suit property.

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(B) It is also case of the plaintiffs that they have already constructed boundary wall on the suit property in the year 2003 which was broken by defendant No. 2 who is counselor of Nagar Palika Parishad, Rajim. It is also case of the plaintiffs that defendant No. 1 passed a resolution on 21.10.2003 for acquiring the said land for construction of commercial complex wherein the counselor has raised objection but no consideration was made to it which has necessitated the plaintiffs to file the suit restraining the defendants from acquiring the suit property and restraining them to evict the plaintiffs from the suit property.

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Defendants No. 1 to 9 have filed written statement denying the allegations made in the plaint mainly contending that:-

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(A) The plaintiffs neither have given any specific description regarding the suit land in the memo of the Postal Department nor explained how the possession has been given to Late Askaran. It has also been contended that the plaintiffs have not filed any document showing the title of the Postal Department as the suit property does not own and title by the Postal Department.

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(B) It has also been contended that the suit land is government Abadi land and as per the revenue record, it is reserved for nistari, as such it is responsibility of defendant No. 1 to protect the same. It has also been contended that the plaintiffs have no legal possession and title, they are encroacher and they have constructed the wall without any authority and permission from defendant No. 1 as such the procedure for demolition was initiated against them. It has also been contended that the plaintiffs have undervalued the suit property as the value of the suit property is Rs. 29 lacs, as such this Court has no jurisdiction to decide the suit for want of pecuniary jurisdiction.

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Defendant No. 10/State of Chhattisgarh has filed written statement supporting the case of the defendant and has prayed for dismissal of the suit. It has also been contended that the suit land is a government land and recorded as Abadi land in the revenue record, as such the plaintiffs have no right over the suit property.

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Learned trial Court on the pleading of the parties, has framed as many as six issues which are extracted below:-

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1 D;k] oknHkwfe oknhx.k ds LoRo vkf/kiR; dh Hkwfe gS \

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2 D;k] oknhx.k dks oknHkwfe ls izfroknh dzekad 1 ls 9 }kjk csn[ky djus dk iz;kl fd;k tk jgk gS \

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3 ;fn gak] rks D;k oknhx.k izfroknh dzekad 1 ls 9 ds fo:) LFkk;h fu"ks/kkKk izkIr djus ds vf/kdkjh gS\

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4 D;k] oknhx.k us nkos dk mfpr ewY;kadu dj U;k;’kqYd pLik fd;k gS\

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5 D;k] izLrqr nkok bl U;k;ky; ds lquokbZ {ks=kf/kdkj ds ckgj gS\

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6 lgk;rk ,oa O;;\

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The plaintiffs to substantiate their case have examined plaintiff- Sanjay Parakh (PW-1), Pukhraj Parakh (PW-2) & Johatram Patel (PW-3) and exhibited documents (Ex. P/1 to P/37). The defendants to substantiate their case have examined (Chandrika Patel) DW-1 and exhibited document namely resolution passed by Nagar Panchayat (Ex. D/1).

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Sanjay Parakh (PW-1) in his examination-in-chief by way of affidavit under Order 18 Rule 4 C.P.C. has reiterated the stand taken by him in the plaint. The said witness was extensively cross-examined by the defendants wherein he has admitted that there is no description regarding boundaries of the suit property. He has admitted that Askaran has sold the land to Motilal. He has also admitted that in Ex. P/28, it has been mentioned that the suit property is Abadi land and he has stated that he is not aware whether Abadi land is taken care by the Collector and also denied that the Abadi land is owned by the Government. He has admitted that in Ex. P/35, no boundary of the sold property has been given. He has also stated that he is not aware that the suit property was purchased in the year 1958 and a documentation was done in this regard. He has also admitted that he has not given any application to the Tahsildar for demarcation and the demarcation report is exhibited as Ex. P/26. He has also admitted that while submitting report Ex. P/26 & P/27, the Patwari statement was not recorded.

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Pukhraj Parakh (PW-2) has supported the case of the plaintiffs by way of affidavit under Order 18 Rule 4 of the C.P.C. This witness was crossexamined by defendants No. 3 to 9 wherein he has admitted that earlier Post Office was in existence in the suit property which is government office. He has denied that the suit property belongs to Gram Panchayat, Rajim. He has also admitted that at present the suit land is recorded as government land or not is not known to him. He has also admitted that Post Office was auctioned or not, is not known to him. He has voluntarily stated that Askaran has purchased the same. He has also admitted that he is not aware whether the suit land has been reserved for market and complex by the Gram Panchayat. He has admitted that presently the suit land is recorded as government land, is not known to him.

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Johatram Patel (PW-3) has admitted that he is not aware whether the suit property is recorded in the name of Shantilal Parakh and his family or not and also stated that he is not aware whether the Abadi land is a government land or not.

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Chandrika Patel (DW-1) in his affidavit under Order 18 Rule 4 of the C.P.C. has stated that the suit property is government property and it is being managed by the Collector, as such the suit property is taken care by Nagar Panchayat. He has also stated that the suit land is in possession of the government and the plaintiffs are not in possession of the suit land. The suit property has been acquired by the Nagar Panchayat in public interest as per resolution dated 21.10.2003. This witness was cross-examined by the plaintiffs wherein he has stated that he is aware that the suit land belongs to Nagar Panchayat, Rajim.

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Learned trial Court after appreciating the evidence and material on record dismissed the suit filed by the plaintiffs vide judgment and decree dated 18.10.2012. The trial Court while deciding Issue No. 1 has recorded its finding that the plaintiffs have submitted receipt dated 11.05.2013 (Ex. P/33) demonstrating that the Askaran has paid Rs. 1250/- for auction and from Ex. P/32, it reflects that after payment of difference of amount, possession of the land has been given but it does not reflect that which Khasra No. land has been sold in the auction and it also does not reflect that the possession of the suit property has been given to Askaran or not. The plaintiffs have submitted that Khasra Panchshala of 1956-57 in column No. of that document, it has only been mentioned that the said land is barren land which has been sold by the Postal Department to Askaran. This document also does not prove the title and possession of Askaran over the suit property. The trial Court has also recorded its finding that the plaintiffs have not examined any witness or produced any document to prove this fact that since 1953 to 28.02.1962, said Askaran has possession or title over the suit property. The plaintiff witness PW-1 has also admitted in paragraph 18 that he has not produced any document with regard to title and possession of Askaran over the suit property. The said witness in paragraph 26 has also admitted that his father or his name has not been recorded in the revenue record. The trial Court has also recorded its finding that the plaintiffs while exhibiting the sale-deed of Hajara Begum (Ex. P/37) and contended that in the description of boundary of property in the West direction, the property of plaintiffs have been mentioned which does not give any title to the plaintiffs with regard to the suit property in absence of any document or evidence adduced by

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the plaintiffs to demonstrate that they have title or possession over the suit property.

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Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiffs preferred first appeal which has been allowed by the First Appellate Court vide judgment and decree dated 05.02.2015. The Appellate Court while reversing the finding of the trial Court with regard to Issue No. 1 in paragraph 21 of the judgment has assigned the reason that there is no evidence on record that Askaran has purchased other than this property through auction, accordingly has reversed the finding and answered Issue No. 1 in favour of the plaintiffs by holding that the suit property is in title and possession of the plaintiffs. Being aggrieved with the judgment passed by the learned First Appellate Court, defendant No. 1 to 8 have preferred the instant Second Appeal before this Court under Section 100 of the Cr.P.C. which has been admitted by this Court on 26.09.2024 on the substantial question as well as additional substantial question of law as stated above.

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Learned counsel for the appellants would submit that there is no valid proof of title or possession of either Askaran or the plaintiffs and the suit property always remained as Government land. He would further submit that the First Appellate Court, however, reversed that finding with regard to Issue No. 1 without assigning any reason to reverse it , as such, it is perverse, contrary to the evidence and deserves to be interfered by this Court while hearing this second appeal. He would further submit that the learned trial Court while deciding Issue No. 2 i.e. whether the defendant No. 1 to 9 have initiated proceedings to

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dispossess the plaintiffs from the suit property. To reverse this finding, he has taken into consideration Ex. P-25, P-34 which are property tax receipts issued by Nagar Panchayat. He has also taken into consideration that after decision taken by defendant No. 1/Nagar Panchayat on 21.10.2003, defendant No. 1 is running daily market on the suit property. It has also recorded that from perusal of Ex. P/35 and P/26, P27, it is quite vivid that defendants No. 1 to 9 are intending to evict the plaintiffs from the suit property. Accordingly, he has reversed the finding on Issue No. 2. This finding is also contrary to the law as unless the finding with regard to Issue No. 1 is reversed by the trial Court by well reasoned finding, the finding of Issue No. 2 cannot be reversed. Thus, the finding of learned First Appellate Court suffers from perversity, illegality and liable to be quashed by this Court. He would further submit that there was no sale certificate or mutation in favour of Askaran or the plaintiffs as required under Rules 37 to 47 of the C.G. Land Revenue Code, thus, no valid auction sale occurred. He would further submit that as per Section 55 of the Transfer of Property Act, Askaran could not transfer property which he never possessed or owned.

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He would further submit that the plaintiffs failed to prove title or possession over the suit property as required under Sections 101 to 103 of the Evidence Act, and that no notice under Section 80 CPC or Section 319 of the Chhattisgarh Municipalities Act, 1961 was served before filing the suit by the plaintiffs, as such the suit is liable to be dismissed on this count alone. The suit being one for injunction alone, without prayer for declaration or possession, was not maintainable, therefore, the trial Court has rightly dismissed the suit and the First

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Appellate Court erred in reversing the judgment passed by the learned trial Court, therefore, he would pray that the appeal be allowed and the plaintiff’s suit be set aside with costs and the substantial questions of law framed by this Court be answered in favour of the appellants.

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On the other hand, learned counsel for respondents No. 1 to 4 opposing the submission made by learned counsel for the appellants would submit that non-compliance of Section 319 of the Chhattisgarh Municipalities Act, 1961 is merely procedural and does not oust the jurisdiction of the Civil Court. The appellants never raised any such objection before the trial Court or the First Appellate Court, therefore, the same stands waived by conduct and estoppel. He would further submit that prior notice and information regarding the disputed land in fact had been given to the Chief Municipal Officer, Nagar Panchayat, Rajim. He would further submit that the appellants actively participated in all stages of proceedings and have suffered no prejudice and prior notice/information regarding the suit property was also given to the Chief Municipal Officer, Nagar Panchayat, Rajim. He would further submit that the learned First Appellate Court after rightly appreciating the evidence, material on record has passed the impugned judgment and decree which neither suffers from perversity nor illegality warranting interference by this Court. He would further submit that it is well settled position of law that in a second appeal, the power of interference by the High Court on finding of facts, is very narrow unless the appellant is able to demonstrate that there is apparent or glaring perversity, illegality which goes to route cause of the case, as such no interference be made by this Court. He would further submit that this is not the situation in the present facts and circumstance of the case

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indulging such interference and would submit that the substantial question of law be answered in negative against the appellants and would pray for dismissal of the appeal. To substantiate his submission, he would refer to the judgments rendered by Hon’ble the Supreme Court in case of Sanjay Sharma Vs. Kotak Mahindra Bank Ltd. & others [SLP © No. 330/2017], Mahnoor Fatima & others Vs. M/s Visweswra Infrastructure Pvt. Ltd. & others [SLP (C) 1866/2024], State of Orissa Vs. Bhupendra Kumar Bose [AIR 1962 SC 945], Ghanshyam Das Vs. Dominion of India [AIR 1984 SC 1004] & Shakti Tubes Ltd. Vs. State of Bihar [AIR 2009 SC 2299] .

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I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.

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Discussion and finding on Substantial Questions of Law No. 1 & 2

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Since both the Issues are inter-connected, therefore, they are being decided by commonly appreciating evidence, material and records which have been extensively referred to by this Court in foregoing paragraphs. From the evidence, the learned trial Court while deciding Issue No. 1 has held that there is no description of the property which has been auctioned by the Postal Department, Govt. of India and even from perusal of Ex. P/32 & P/33, it is not proved that the possession has been given to Askaran regrading which property. Even the trial Court further appreciating the evidence has recorded its finding that PW-1 has admitted that the suit property is Abadi land, thus, it was more necessary for the plaintiffs to establish how the Abadi land which has been defined under the Land Revenue Code, is a State government land, can be owned by the Central Government. No such

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material was placed by the plaintiffs. The word ‘Abadi’ has been defined in the Land Revenue Code, 1959 which reads as under:-

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“ ‘abadi’ means the area reserved from time to time in a village in a non-urban area for the residence of the inhabitants thereof or for purposes ancillary thereto, and any other local equivalent of this expression such as "village site" or "gaonsthan" shall also be construed accordingly;”

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The trial Court has also taken note of the fact that how Askaran became the title holder of the suit property, is not proved. From the appreciation of material, evidence and law, it is quite vivid that the well reasoned finding of the trial Court, has been reversed by the First Appellate Court without assigning any reason on flimsy ground, as such in view of the provisions contained in Section 100 of the C.P.C., hearing of the second appeal, this Court can very well interfere in the finding which are suffered from perversity, non application of mind and based on no evidence. Hon’ble the Supreme Court in case of Balasubramanian & another Vs. M. Arockiasamy (dead) Through

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Lrs. [(2021) 12 SCC 529] wherein three Judges of Hon’ble the Supreme Court has examined the law with regard to interference by the High Court in second appeal and have held as under:-

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“13. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts the High Court has breached the said settled position. To that extent the factual aspects and the evidence tendered by the parties has already been noted above in brief. Further, what is distinct in the present facts of the case is that the finding rendered by the learned Munsif (Trial Court) and by the learned District Judge (First Appellate Court) are divergent. The trial court on taking note of the pleadings and the evidence available before it was of the opinion that the plaintiff has failed to prove exclusive possession

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and, in such light, held that the entitlement for permanent injunction has not been established. While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the conclusion that except for the say of plaintiff as PW1 there was no other evidence. On the documentary evidence it was indicated that the kist receipts at Exhibit A5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid.

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As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property. When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.

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In view of the above, although the counsel for the appellant may be technically correct in his submission that the High Court erred in not clearly answering the question of law framed by it under Section 100, CPC, the High Court was still within its jurisdiction to determine whether the reading of the evidence on record by one of the Courts below was perverse. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated. As already noted, the divergent view of the courts below on the same set of facts was available before the High Court. From the judgment rendered by the trial court, the nature of contentions as noted would disclose that the plaintiff except contending that the suit schedule property was being enjoyed for the past 40 years by paying kist has not in fact referred to the manner in which such right had accrued so as to suggest or indicate unassailable right to be in physical possession. On the other hand, the defendant while denying the right of the plaintiff to claim the relief had traced the manner in which the property had devolved and the right which is being claimed by the defendant. It was also

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contended that the defendant No.1 is residing in the thatched house which is on the property. It is in that light the trial court having taken note of the assertions made by the defendant No.1 and lack of evidence by the plaintiff had arrived at the conclusion that the possession of the plaintiff as claimed cannot be accepted and that the plaintiff has not sought for declaration despite the defendant having disputed the claim of the plaintiff.”

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Learned trial Court while deciding the issue with regard to title and possession has recorded its finding that no clinching evidence was led by the plaintiffs to establish the title and possession as tax receipt which is a revenue record, does not confer title of the plaintiffs over the suit property. Even the plaintiff has not placed any material how the State Government land which is an Abadi land wherein the Post Office was constructed can be sold in auction by the Postal Department. Even the plaintiff has not produced any document to demonstrate that the auction was conducted namely notice of auction, sale certificate issued in favour of successful bidder by which the property has been purchased by Askaran in the auction. This finding was neither perverse nor contrary to the evidence which have been mechanically reversed by the First Appellate Court while relying upon receipt Ex. P/33 which is not the document which can confer title of the plaintiff over the suit property but they are the receipts of deposit of some amount which does not clarify that this receipt pertains to the suit property. Similarly Ex. P/32 is letter written by Superintendent of Post to the Deputy Commissioner Raipur dated 14.06.1958 which does not clarify which property has been purchased by Askaran through auction on 25.03.1953 as there is no description of the land which is subject matter of auction. The best evidence which would be available to the plaintiffs i.e. the documents relating to the auction wherein the description of the property would be mentioned. These vital documents

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have not been produced by the plaintiff. As such the learned trial Court has rightly drawn adverse inference against the plaintiffs which has been reversed by the First Appellate Court without assigning any reason or recording a finding. Thus, the finding of the trial Court is in conformity with law of adverse inference of non-examining the vital evidence which can throw light on the issue and also in accordance with law that the tax/revenue record does not confer any title. Hon’ble the Supreme Court in case of Chaudamma (D) through Lrs. Vs. Venkatappa (D) through Lrs. [(2025) INSC 1038] has held as under:-

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“ Revenue records not proof of title

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In the absence of any substantive rebuttal, the defendants seek refuge in the revenue records. However, their reliance on the revenue records (Ex.P1-P6) is of no avail, as such records only hold presumptive value and don’t confer title. This Court in Suraj Bhan and Ors. v. Financial Commissioner and Ors. [(2007) 6 SCC 186] observed thus:

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“9. … It is well settled that an entry in revenue records doesnot confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only “fiscal purpose” i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh, (1993) 4 SCC 403). …”

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Parties failure to enter witness box: Consequences .

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The failure of the defendants to substantiate their claims through documentary evidence is eclipsed by a more consequential omission. In a case where the p.rincipal controversy turns on matters lying within her exclusive personal knowledge, the silence of defendant No.1, her absence from the witness box, is not a procedural lapse but a calculated withdrawal from scrutiny.

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This principle is neither novel nor uncertain. This Court in Vidhyadhar v. Manikrao and Anr. [(1999) 3 SCC 573] held thus:

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“17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be

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cross-examined by the other side, a presumption would arise that the case set up by him is not correct …. ”

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The present case is a compelling invocation of the above principle. Defendant No.1, though physically present in the Court during the trial, abstained from stepping into the witness box to rebut the plaintiffs’ assertions — assertions that strike at the very core of the dispute. In the absence of cogent medical evidence to support her alleged incapacity, her abstention from the witness box constitutes deliberate circumvention of the evidentiary burden resting upon her.

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In the present factual matrix, the adverse presumption under Section 114(g) of the Evidence Act is inevitable.

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This Court cannot overlook that defendant No. 1, while central to the controversy, chose not only to abstain from entering the witness box but also wilfully bypassed the statutory remedy available to those pleading physical incapacity.

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Order XXVI, Rule 1 of the Code of Civil Procedure, 1908, permits the recording of evidence through a commission in cases of age or infirmity. Yet, no application was filed invoking the said provision, nor was any explanation tendered for its non-invocation. In a dispute where the foundational facts lie squarely within her exclusive knowledge, such omission assumes critical significance. Her refusal to depose, despite the existence of a procedural safeguard specifically tailored to her alleged condition, cannot be dismissed as inadvertent. Rather, it reflects a conscious evasion from the evidentiary process, compounded by her unexplained failure to avail an accessible legal alternative, is not a neutral act. It constitutes wilful shielding from judicial scrutiny.

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A Court of law cannot offer refuge to studied silence where a duty to disclose exists. The plaintiffs anchored their claim in measured and unwavering testimony of P.W.2 (Hanumanthappa), an account rooted in personal knowledge and long-standing familiarity, which withstood the rigours of cross-examination. His evidence, unshaken and consistent, found further corroboration in the genealogical chart presented by the plaintiffs. It, therefore, stands established that the plaintiffs have discharged the evidentiary burden imposed upon them by law. In contrast, the defendants, bereft of probative material or candour, resorted solely to denials. When measured against the touchstone of preponderance of probabilities, the scales unambiguously tilt in favour of the plaintiffs.”

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The learned First Appellate Court without considering these aspects of

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the matter has mechanically reversed the well-reasoned finding of the

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trial Court which definitely deserves to be interfered by this Court in second appeal as held by Hon’ble the Supreme Court in case of Balasubramanian (supra).

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Considering the fact that the well reasoned finding recorded by the trial Court in dismissing the suit, has been reversed by the learned First Appellate Court on perverse finding, is contrary to law, the Substantial Questions No. 1 & 2 are deserved to be answered in favour of the appellants and against the respondents. Accordingly, the Substantial Questions No. 1 & 2 are answered against the plaintiffs and in favour of defendants No. 1 to 9 i.e. the appellants.

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Discussion and finding on additional Substantial Question of Law

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To appreciate this Point, it is expedient for this Court to extract Section 319 of the Chhattisgarh Municipality Act, 1961 which reads as under:-

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“ Section 319- Par of suit in absence of notice.- (1)No suit shall be instituted against any Council or any Councillor, officer or servant thereof or any person acting under the direction of any such Council, Councillor, officer or servant for anything done or purporting to be done under this Act until the expiration of two months next after a notice, in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a Council, delivered or left at its office, and, in the case of any such member, officer, servant or person as aforesaid, delivered to him or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.

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(2)Every such suit shall be dismissed unless it is instituted within eight months from the date of the accrual of the alleged cause of action.

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(3)Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the [Specific Relief Act, 1877 (1 of 1877).] [Now Specific Relief Act, 1963.]”

¶115

From perusal of the provisions of aforesaid Section, it is quite vivid that

¶116

before filing of the suit, the plaintiffs should have served with a notice but in the present case, no notice has been given by the plaintiffs to defendant No. 1, but this objection was not taken by the appellants

¶117

Page 18 of 19

¶118

either before the trial Court or before the First Appellate Court but the appellants have participated in the suit proceedings without any objection or reservation and no prejudice has been caused to them as no temporary injunction was sought by the plaintiffs. Hon’ble the Supreme Court in case of State of Andhra Pradesh Vs. Pioneer Builders [(2006) 12 SCC 119] has examined the provisions of Section 80 of the C.P.C. which is pari-materia to the Section 319 of the Municipalities Act, 1961 wherein Hon’ble the Supreme Court has held as under:-

¶119

“18. Bearing in mind the afore-noted legal position, we advert to the facts in hand. As noted above, the subordinate Judge, vide Order dated 2nd February, 1993 came to the conclusion that "there was no tenable ground to refuse the relief asked for". Though there may be some substance in the submission of Mr. Choudhary, learned senior counsel appearing for the State, that the order allowing the application, seeking dispensation of the requirement of notice, is cryptic but the fact remains that by allowing the application, after hearing the defendant State, the Judge has opined that the suit is for the purpose of obtaining an urgent and immediate order. Had the satisfaction been against the contractor, the Court was bound to return the plaint to the contractor for re-presentation after curing the defect in terms of sub- section (1) of Section 80. Although we do not approve of the manner in which the afore-extracted order has been made and the leave has been granted by the subordinate Judge but bearing in mind the fact that in its reply to the application, the State had not raised any specific objection about the maintainability of the application on the ground that no urgent and immediate relief had either been prayed for or could be granted, as has now been canvassed before us, we are of the opinion that having regard to the peculiar facts and the conduct of both the parties it is not a fit case where the matter should be remanded back to the subordinate Judge for re-consideration. We find it difficult to hold that the order passed by subordinate Judge on contractor's application under Section 80(2) C.P.C. was beyond his jurisdiction. Accordingly, we decline to interfere with the finding recorded by the High Court on this aspect of the matter. The High Court has held that having participated in the original proceedings, it was not now open to the State to raise a

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Page 19 of 19

¶121

fresh issue as to the maintainability of the suit, in view of waiving the defect at the earliest point of time. The High Court has also observed that knowing fully well about non-issue of notice under Section 80 C.P.C. the State had not raised such a plea in the written statement or additional written statement filed in the suit and therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not necessarily depends on facts of each case and is liable to be tried by the Court, if raised, which, as noted above, is not the case here.”

¶122

In view of the abovestated legal position and considering the provisions of Section 319 of the Municipalities Act, 1961, the additional substantial question of law framed by this Court, is answered against the appellants/defendants No. 1 to 9 and in favour of the the plaintiffs and it is held that the the suit filed by the plaintiffs without issuing notice, was very much maintainable.

¶123

Since the Substantial Questions No. 1 & 2 have been answered against the plaintiffs and in favour of defendants No. 1 to 9, the judgment and decree dated 05.02.2015 passed by Additional District Judge, Gariyaband, District- Gariyaband (C.G.) in Civil Appeal No. 14A/2013, is set aside and the judgment and decree dated 18.10.2013 passed by Civil Judge Class-II, Rajim, District- Gariyaband (C.G.) in Civil Suit No. 63-A/2008, is restored by dismissing the suit filed by the plaintiffs.

¶124

Accordingly, the instant second appeal is allowed. A decree be drawn up accordingly.

¶125

Sd/-

¶126

(Narendra Kumar Vyas)

¶127

Judge

¶128

Arun

Nagar Panchayat, Rajim v. Smt. Tarabai

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Nagar Panchayat, Rajim v. Smt. Tarabai

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