Dismissed¶35

Kishore Masih v. State of Chhattisgarh

Chhattisgarh HC13 Jan 2025SA/391/2009

Case brief

AI extract

What is this about?

Chhattisgarh High Court Bilaspur; SA No. 391 of 2009; Second Appeal; Section 100 CPC; substantial question of law; concurrent finding of fact; perversity; non-interference; declaration of title and possession; suit dismissed for want of title documents; oral evidence only; State proceeded ex parte; claim through Yakub Masih (died 1964); State of Rajasthan v. Shiv Dayal (2019) 8 SCC 637 relied on; appeal dismissed in limine; Kishore Masih v. State of Chhattisgarh; Village Lacchanpur, Tahsil Mungeli; Justice Deepak Kumar Tiwari.

What did the court decide?

The Second Appeal involves no question of law, much less a substantial question of law, within the meaning of Section 100 of the CPC. ¶13

Kishore Masih Vs State of Chhattisgarh — Chhattisgarh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the Second Appeal involves any substantial question of law within the meaning of Section 100 of the CPC and whether it should be admitted for final hearing. +1 more

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Court's answer

The Second Appeal involves no question of law, much less a substantial question of law, within the meaning of Section 100 of the CPC.

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Ratio / Principle

When there is a concurrent finding of fact, the Court should not ordinarily interfere with it unless it is found to be perverse.

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Key takeaways

The findings recorded by both the Courts below are based on proper appreciation of the evidence on record; there is no illegality or perversity in them, they do not call for interference, and the judgments and decrees of both Courts are just, proper and legal.ratio¶13
The plaintiff failed to establish that the subject property belonged to Yakub Masih; on the evidence, Yakub Masih died in 1964 and the plaintiff was born after that date, undermining the claim of succession through him.ratio¶30

Detailed headnote1 paragraphs

Second Appeal (SA No. 391 of 2009, High Court of Chhattisgarh, Bilaspur — Deepak Kumar Tiwari, J., decided 14/01/2025): Plaintiff sought declaration of title and possession of agricultural land at Village Lacchanpur, Tahsil Mungeli, claiming to be the sole successor of Yakub Masih, but filed no document or title paper proving the land was recorded in Yakub Masih's name, relying only on oral affidavits; the State was proceeded ex parte at trial. The Civil Judge Class-I, Mungeli (decree dated 25.09.2007, Civil Suit No.27-A/2007) dismissed the suit for want of title documents, and the Second Additional District Judge, FTC, Mungeli (decree dated 22.12.2008, Civil Appeal No.7-A/2008) confirmed it. Counsel for the appellant conceded no document was filed and argued the ex parte proceeding warranted a decree. Holding: relying on State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637, a concurrent finding of fact should not ordinarily be disturbed unless perverse; Yakub Masih died in 1964 while the plaintiff was born thereafter; the findings suffered no illegality or perversity; and the appeal raised no substantial question of law under Section 100 CPC. Second Appeal dismissed in limine, upholding the judgments and decrees of both Courts below.

2025:CGHC:2218

NAFR

Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.01.16 11:05:17 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 391 of 2009

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Kishore Masih S/o Pyarelal, aged about 37 years, R/o Takhatpur, District Bilaspur (CG)

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... Petitioner(s)

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versus

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State Of Chhattisgarh through the Collector, Bilaspur, District Bilaspur (CG)

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... Respondent(s)

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For Appellant(s) : Mr. Rakesh Kumar Thakur, Advocate. For Respondent(s) : Mr. T. S. Sahu, Panel Lawyer.

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

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Judgment on Board

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14/01/2025

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This is a Second Appeal filed by the plaintiffs under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “ the CPC ”) against the judgment and decree dated 22.12.2008 passed by the Second Additional District Judge, FTC, Mungeli, Bilaspur (CG) in Civil Appeal No.7-A/2008, which, in turn, arises out of the judgment and decree dated 25.09.2007 passed by the Civil Judge Class-I, Mungeli, Bilaspur (CG) in Civil Suit No.27-A/2007.

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By the impugned judgment and decree, the First Appellate Court dismissed the appeal filed by the plaintiff (appellant herein) and in consequence, upheld the judgment and decree passed by the trial Court, which had dismissed the plaintiff’s suit.

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So the short question that arises for consideration in this appeal is whether this Second appeal involves any substantial question law within the meaning of Section 100 of the CPC and whether such appeal should be admitted for final hearing?

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Henceforth, the parties shall be referred to as per their description before the Court below.

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The facts of the case lie in a narrow compass. The plaintiff/appellant filed a civil suit for declaration of title and possession in respect of the land bearing Khasra No.1 Area 0.30 acres, Khasra No.2 Area 0.26 acres, Khasra No.4 Area 66.00 Acres and Khasra No.8 Area 25.81 Acres situated at Village Lacchanpur, Tahsil Mungeli, Bilaspur on the ground that one Yakub Masih was the original owner of the land in question and he was the elder father (Bade Pita) of the plaintiff and since Yakub Masih and his wife had no issue, they nurtured the plaintiff as their son, therefore, the plaintiff is the only successor of the subject land. On 27.10.1974, father of the plaintiff namely Pyarelal was murdered, therefore, family of the plaintiff started residing at Village Takhatapur. It was also averred that after the death of Yakub Masih the land in question was possessed by the respondent/State. Hence, the suit has been filed.

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During the trial proceedings, the State was proceeded ex parte. In order to prove his case, the appellant/plaintiff filed affidavits of himself,

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Bodhan Satnami and of one Jaikumar. However, no document or title paper has been filed by the plaintiff to prove that said land belongs to Yakub Masih, therefore, the trial Court dismissed the suit for want of such documents.

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Against the said findings, the appellant/plaintiff preferred the First Appeal and the First Appellate Court, on appeal, concurred with the findings recorded by the trial Court with regard to the fact that no document has been filed by the plaintiff/appellant to demonstrate that the subject land is recorded in the name Yakub Masih. Ultimately, the first appeal was dismissed by confirming the judgment and decree passed by the trial Court. It is this judgment and decree passed by the First Appellate Court, which is impugned in the Second Appeal filed by the appellants/plaintiffs.

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Learned counsel for the appellants would submit that the trial Court as well as the Appellate Court have committed an error by not appreciating the evidence in its proper perspective so the finding recorded by both the Courts below is perverse. However, he admits the fact that no document was filed to show that the suit property belonged to deceased Yakub Masih and only oral evidence was adduced by the plaintiff. He would also submit that since the State was proceeded ex parte, the decree ought to have been passed in favour of the plaintiff.

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Heard learned counsel for the appellant/plaintiff and perused the record with utmost circumspection.

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There is a concurrent finding of facts recorded by the trial Court as well as the Appellate Court that the appellant/plaintiff has failed to establish

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that the subject property belonged to Yakub Masih and that he was the owner of the said property. Furthermore, the plaintiff has made his claim through Yakub Masih, however, from the evidence available on record, it is quite vivid that Yakub Masih died in the year 1964 and the plaintiff was born after the said date.

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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.

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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.

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Having heard learned counsel for the parties 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 two Courts below appear to be just, proper and legal. The findings recorded by both the Courts 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.

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