Nand Kishore Vs Dev Prakash Verma

1 - Dev Prakash Verma S/o Late Brijlal Verma Aged About 61 Years R/o Palari, Tehsil Palari, District Balodabazar Bhatapara, Chhattisgarh. At Present R/o House No. 1, Park Street No. 1. Choubey Colony, Raipur, District Raipur Chhattisgarh.

¶13

2 - Smt. Narendri Wd/o Late Brijlal Verma Aged About 83 Years R/o Village Palari, Tehsil Palari, District Balodabazar Bhatapara, Chhattisgarh. At Present R/o Jeevan Bima Marg, Pandari, District Raipur Chhattisgarh.

¶14

3 - Smt. Suman Parganiya D/o Late Brijlal Verma Aged About 59 Years R/o Rajnandgaon Bada Tatyapara, District Raipur, Chhattisgarh. At

¶15

2

¶16

Present R/o Village No. 225, Saphira Green, Vidhan Sabha Road, Raipur, District Raipur Chhattisgarh.

¶17

4 - Smt. Pratibha Chandrakar D/o Late Brijlal Verma Aged About 55 Years R/o 38a/1, Mall Shri Vihar, Vip Road, Raipur, Post Office New Puraina, Raipur, District Raipur Chhattisgarh.

¶18

5 - Ratna Verma D/o Late Brijlal Verma Aged About 57 Years At Present R/o Jeevan Bima Marg, Pandari, District Raipur Chhattisgarh.

¶19

6 - Saumya Khichariya D/o Tarun Kumar Khichariya Aged About 30 Years R/o Street No. 5, Narsingh Vihar, Katul Board Junvani Road, Durg Post S.A.F Line, District Durg Chhattisgarh.

¶20

7 - Purva Khichariya D/o Tarun Kumar Khichariya Aged About 24 Years R/o Street No. 5, Narsingh Vihar, Katul Board Junvani Road, Durg Post S.A.F Line, District Durg Chhattisgarh.

¶21

8 - Satish Kumar S/o Bhupendra Nath Verma R/o Puran, Post Office Risda, Tehsil Balodabazar District Balodabazar Bhatapara, Chhattisgarh.

¶22

9 - State Of Chhattisgarh Through The Collector Balodabazar Bhatapara, District Balodabazar Bhatapara Chhattisgarh.

¶23

10 - Navin Mishra S/o Ramprakash Mishra Aged About 24 Years R/o Housing Board Colony, Balodabazar, District Balodabazar Bhatapara Chhattisgarh.

¶24

…. Respondent(s)

¶25

(Cause title is taken from CIS)

¶26

For Appellant(s)	: Mr. S.C. Verma, Senior Advocate alongwith
	Mr. Manharan Lal Sahu, Advocate
For Respondent/State	: Mr. Lekhram Dhruw,Panel Lawyer

¶27

3

¶28

Hon'ble Shri Justice Bibhu Datta Guru

¶29

Judgment on Board

¶30

24/04/2026

¶31

The present Second Appeal has been preferred by the plaintiffs under Section 100 of the Code of Civil Procedure, 1908, assailing the impugned judgment and decree dated 09.01.2020 passed by the learned 1^st Additional District Judge, Balodabazar (C.G.) in Civil Appeal No. 03-A/2016 (Nandkishore vs. Devprakash Verma & Ors.), affirming the judgment and decree dated 06.01.2016 passed by the learned 1^st Civil Judge, Class-I, Balodabazar (C.G.), in Civil Suit No. 152-A/2001 (Nandkishore vs. Devprakash Verma & Ors.), whereby the civil appeal filed by the appellants/ plaintiffs and the counter appeal filed by the defendant No.1Devprakash Verma, were dismissed. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the Trial Court.

¶32

The plaintiffs have instituted the suit seeking declaration of title over the house property situated at Balodabazar, Nazul Sheet No. 14A, Plot No. 8/2 admeasuring 4800 sq. ft., along with a declaration that the order dated 14.02.1994 passed by the SubDivisional Officer, Balodabazar in Revenue Case No. 21A/6 (1993–94), as well as the subsequent sale deeds dated 21.03.2001 and 27.03.2001 executed in favour of defendant No. 08- Satish Kumar in respect of portions of the suit property admeasuring 950 sq. ft. and 825 sq. ft., are not binding upon

¶33

4

¶34

them, pleading inter alia that the suit house originally stood recorded in the name of late Brijlal Verma and upon his death, all his legal heirs (including the plaintiffs and defendants) jointly inherited the property; however, taking undue advantage of the plaintiffs’ absence, defendant No. 01 Devprakash, by allegedly obtaining a forged consent, got the property mutated exclusively in his name vide order dated 14.02.1994 without affording opportunity of hearing to the other co-heirs, and thereafter during pendency of proceedings, illegally alienated parts of the suit property in favour of defendant No. 08, whereof the plaintiffs gained knowledge only upon obtaining certified copies on 30.03.2000, necessitating the filing of the suit.

¶35

Per contra , defendant No. 1, Devprakash, in his written statement, has opposed the suit contending that after the death of Brijlal in 1988, a family partition took place between the parties, pursuant to which the suit house fell exclusively to his share under a family arrangement, and on the basis of consent given by all other legal heirs, a lawful mutation order dated 14.02.1994 was passed in his favour after due publication. It is further pleaded that the plaintiffs were well aware of the said mutation since inception but never challenged it, and therefore the suit is barred by limitation as well as acquiescence. It is also averred that under the family arrangement, the suit property at Balodabazar came to Defendant No. 1, whereas a property at New Delhi was allotted to Plaintiff No. 1. The defendant claims to be in continuous possession of the

¶36

5

¶37

suit house and submits that, due to financial liabilities, he sold portions of the property to Defendant No. 8, in the years 1994–95 and handed over possession. Objections regarding improper valuation, insufficiency of court fee, lack of jurisdiction, and nonjoinder of necessary parties have also been raised, along with the plea that the plaintiffs have not even sought the relief of possession; hence, the suit deserves to be dismissed.

¶38

Defendants No. 2 to 7 and 9 were proceeded ex parte due to nonappearance and non-filing of written statements; defendant No. 2 was deleted upon her death, and the legal representatives of deceased defendant No. 7, though brought on record, were also proceeded ex parte.

¶39

Defendant No. 8, Satish Kumar, also filed his written statement and contended that the suit property exclusively belonged to defendant No. 1 under a family arrangement, and that he has lawfully purchased portions thereof through duly registered sale deeds after proper verification of records, thereby claiming to be a bona fide purchaser. He has further raised objections regarding improper valuation, insufficient court fee, lack of pecuniary jurisdiction, non-joinder of necessary parties, bar of limitation, and the plaintiffs’ failure to challenge the prior partition and mutation order, and has prayed for dismissal of the suit.

¶40

After framing the issues and upon due appreciation of the oral as well as documentary evidence available on record, the learned

¶41

6

¶42

Trial Court dismissed the suit filed by the plaintiffs, holding that the plaintiffs failed to establish their claim over the suit property. Aggrieved by the said judgment and decree dated 06/01/2016, the plaintiffs preferred a First Appeal under Section 96 of the Code of Civil Procedure as well as the defendant No.1 has also filed a counter appeal 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 both the appeals filed by the plaintiffs as well as the defendant No.1 by the impugned judgment. Hence, the present appeal by the plaintiffs.

¶43

(a) Learned counsel for the appellants/plaintiffs submits that the impugned judgments and decrees passed by both the learned trial Court as well as the First Appellate Court are wholly illegal, perverse and contrary to the material available on record. He submits that both the Courts have gravely erred in placing reliance upon the alleged family arrangement dated 30.10.1994 (Ex.D-1) and treating the same as a partition deed, despite the fact that the said document is unregistered and insufficiently stamped, and thus inadmissible in evidence in view of Section 17 of the Registration Act. He further submits that, on the basis of such inadmissible document and a stray admission of plaintiff No. 1, the Courts have erroneously held defendant No. 1 to be the exclusive owner of the suit property, ignoring the consistent case and evidence of the plaintiffs that the property remained joint and,

¶44

7

¶45

at best, defendant No. 1 had only a limited share therein.

¶46

(b) Learned counsel also contends that the findings regarding non-maintainability of the suit under Section 34 of the Specific Relief Act are unsustainable, inasmuch as the plaintiffs, being coowners, cannot be denied relief merely on the ground of not seeking possession. Learned counsel further submits that the sale deeds dated 21.03.2001 and 27.03.2001 executed by defendant No. 1 in favour of defendant No. 8 are null and void and not binding in law, as the suit property being Nazul land could not have been transferred without prior permission of the competent authority. Learned counsel additionally contends that the mutation order dated 14.02.1994 was obtained on the basis of forged consent and could not operate as estoppel against the plaintiffs. He lastly submits that the learned First Appellate Court has committed a serious illegality in not deciding the application under Order 41 Rule 27 CPC, thereby vitiating the impugned judgment. Hence, learned counsel prays that the substantial questions of law be answered in favour of the appellants and the impugned judgments and decrees be set aside.

¶47

(c) By placing reliance upon the decision rendered by the Supreme Court in the matter of Thulasidhara & Anr. vs. Narayanappa & Ors. reported in 2019(6) SCC 409 , learned Senior Counsel would submit that interference with concurrent findings of fact in second appeal permissible only when material

¶48

8

¶49

or relevant evidence not considered or when findings arrived at by relying on inadmissible evidence by the First Appellate Court.

¶50

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.

¶51

In the present case, both the learned Trial Court as well as the learned First Appellate Court, upon due appreciation of the pleadings, oral and documentary evidence available on record, have concurrently recorded findings against the plaintiffs and have held that the plaintiffs have failed to establish their exclusive title, declaration of ownership and entitlement over the suit house bearing Nazul Sheet No. 14A, Plot No. 8/2, admeasuring 4800 sq. ft. Both the Courts have categorically held that the family arrangement dated 30.10.1994 (Ex.D-1) was duly proved on record through admissions of the plaintiffs in cross-examination, whereby execution of the said document and signatures of the plaintiffs and family members were clearly admitted, and therefore the said document cannot be treated as inadmissible. It has further been held that the said document, though styled as family arrangement, constitutes a valid record of prior partition between the parties and is admissible in evidence being only a memorandum of past settlement.

¶52

9

¶53

The learned Trial Court also dismissed the suit on the ground that the plaintiffs had not sought for any relief of possession and hence the suit for declaration of title simplicitor is not maintainable in view of the provisions of Section 34 of the Specific Relief Act, 1963 (for short, “the Act of 1963”). For the sake of convenience, Section 34 of the Specific Relief Act, 1963 is reproduced hereinbelow :-

¶54

“ 34. Discretion of court as to declaration of status or right .- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

¶55

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

¶56

Explanation. A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.”

¶57

A plain reading of the proviso to Section 34 of the Act of 1963 makes it clear that where the plaintiffs are in a position to seek further consequential relief, such as possession, but omits to do so, a mere suit for declaration of title is not maintainable. Thus, the grant of declaratory relief is discretionary and is expressly

¶58

10

¶59

barred in cases where the plaintiffs, despite being able to seek complete relief, restricts the claim to declaration simplicitor.

¶60

Furthermore, the Apex Court in the matter of Vasantha ( Dead ) Through Legal Representative vs. Rajalakshmi Alias Rajam ( Dead ) Through Legal Representatives report in (2024) 5 SCC 282 has categorically held that the suit for declaration simplicitor is not maintainable in view of the provisions of Section 34 of the Act of 1963.

¶61

Both the Courts have also concurrently held that the plaintiffs are estopped from challenging the mutation order dated 14.02.1994 (Ex.P-1), as the same was passed on the basis of consent of all legal heirs and was never challenged within limitation, thereby rendering the suit hopelessly time barred. It has further been found that the plaintiffs had knowledge of the said order from the very beginning and still failed to challenge it before the competent forum, resulting in clear waiver and estoppel. Both the Courts have further held that the plaintiffs failed to prove their possession over any specific portion of the suit property and also failed to seek consequential relief of possession, thereby attracting the bar under Section 34 of the Specific Relief Act. It has also been concurrently held that the suit suffers from non-joinder of necessary parties and improper valuation, and thus is not properly maintainable. In view of such findings, the plaintiffs have been held not entitled to declaration or permanent injunction.

¶62

11

¶63

So far as the counter appeal preferred by defendant No. 1 is concerned, the First Appellate Court has specifically considered the objections relating to valuation and court fees and has held that the findings recorded by the Trial Court on Issue Nos. 03 and 04 do not suffer from any illegality or perversity. The Appellate Court, upon independent appreciation of evidence, has affirmed the findings of the Trial Court and has rejected the counter appeal as being devoid of merit, holding that proper valuation had already been considered and no jurisdictional error was made out. Accordingly, the counter appeal has been dismissed.

¶64

The decision rendered by the Supreme Court in the matter of Thulasidhara (supra), relied by the appellant is not applicable to the facts of the present case because both the Courts on due appreciation of the evidence and the material available on record have concurrently held that the plaintiffs have failed to prove their case.

¶65

Thus, the concurrent findings recorded by both the learned Courts are based on proper appreciation of pleadings, evidence on record and settled principles of law. The findings do not suffer from any perversity, illegality or material irregularity warranting interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.

¶66

Even otherwise, the scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is extremely

¶67

12

¶68

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.

¶69

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/ plaintiffs 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.

¶70

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.

¶71

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.

¶72

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

¶73

13

¶74

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.

¶75

Very recently the Supreme Court in the matter of Russi Fisheries Pvt. Ltd. Vs. Bhavna Seth & Ors. in C.A. No. 109/2010 decided on 09.04.2026 has held thus at paras 31 to 35 :-

¶76

“31. It is settled in law that the findings of fact howsoever erroneous, cannot be reopened and disturbed in second appeal which is required to be adjudicated only upon the substantial question of law, if any, arising therein. Thus, the argument that the High Court in second appeal ought to have examined the evidence to ensure the correctness of the findings of the First Appellate Court has no legs to stand and fails.

¶77

32. Long back in 1981, three judges of this Court in the case of Bholaram Vs. Ammerchand had ruled that even if findings of facts by courts below are wrong or grossly inexcusable that by itself would not entitle the High Court to interfere under Section 100 CPC in the absence of clear error of law. A similar view was reiterated in Madhavan Nair vs. Bhaskar Pillai (Dead) by Lrs., wherein it has been laid down that even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

¶78

33. In Kashibai w/o Lachiram and Another vs. Parwatibai w/o Lachiram and others, a similar proposition of law was laid down by this Court and it was held that the High Court cannot reappreciate the evidence and interfere

¶79

14

¶80

with the findings of facts unless a substantial question of law or a question of law duly formulated is to be decided. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

¶81

34. Similar is the situation in the case at hand. The High Court has not found any substantial question of law or a question of law worth consideration in the second appeal and, therefore, there was no occasion for it to have reappreciated the evidence so as to come to a different conclusion.

¶82

35. Again, in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by Lrs & Ors., it was emphasized that the fact remains that in a second appeal, a finding of fact, even if erroneous, will not be disturbed unless it is found that it stands vitiated for want of perversity. No such case for interference has been made out in the present case.”

¶83

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

¶84

15

¶85

and proper and there is no illegality and infirmity at all.

¶86

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.

¶87

Accordingly, the Second Appeal fails and is hereby dismissed resulting in upholding of the judgment and decree of the trial Court as well as the Appellate Court.

¶88

Sd/- (Bibhu Datta Guru) Judge

¶89

$. Bhilwar

Nand Kishore v. Dev Prakash Verma

Case brief

What is this about?

What did the court decide?

Nand Kishore v. Dev Prakash Verma

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Parsuram Vs Ganeshram Sahu

Smt. Karun Lata Soni Vs Smt. Umisha Soni

Rohit Patel Vs Smt. Devkunwar

M/s Goyal M.G. Gases Pvt. Ltd. Vs Ind Synergy Limited

Bharatlal Navrang Vs Rajni Mathur

Sheikh Anwar Khan Vs Duryodhan