Smt. Mahabati and Ors. Vs Heeralal Sinha and Ors.

¶1

1

¶2

2026:CGHC:8792

¶3

JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.02.20 10:32:48 +0530

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

NAFR

¶6

SA No. 328 of 2013

¶7

1. Smt. Mahabati W/o Late Bhagwati Prasad Sinha Aged About 47 Years R/o Itwari Bazar, Khairagarh, Tah. Khairagarh, Distt. Rajnandgaon C.G., Chhattisgarh

¶8

2. Deepak Sinha S/o Late Bhagwati Prasad Sinha Aged About 25 Years R/o Itwari Bazar, Khairagarh, Tah. Khairagarh, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶9

3. Tarun Sinha S/o Late Bhagwati Prasad Sinha Aged About 25 Years R/o Itwari Bazar, Khairagarh, Tah. Khairagarh, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶10

4. Ritesh Sinha S/o Late Bhagwati Prasad Sinha Aged About 18 Years R/o Itwari Bazar, Khairagarh, Tah. Khairagarh, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶11

5. Usha Sinha D/o Late Bhagwati Prasad Sinha Aged About 33 Years R/o Rasmada, P.S. Anjora, Distt. Durg C.G., District : Durg, Chhattisgarh

¶12

6. Sudha Bai D/o Late Bhagwati Prasad Sinha Aged About 31 Years R/o Bilhari, P.S. And Tah. Rajnandgaon, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶13

7. Savita Sinha D/o Late Bhagwati Prasad Sinha Aged About 29 Years R/o Kalewa, P.S. Dhumka, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶14

8. Laxmi Sinha D/o Late Bhagwati Prasad Aged About 27 Years R/o Shankerpur, Tah. And Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶15

9. Sunita Sinha D/o Late Bhagwati Prasad Sinha Aged About 23 Years W/o Yogesh, R/o Pendri, Tah. And Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

... Appellant(s)

2

versus

1. Heeralal Sinha And Ors S/o Guhari Sinha Aged About 40 Years R/o Mohla, Tah. Mohla, Distt. Rajnandgaon C.G., Chhattisgarh

¶20

2. Basanti Bai W/o Chovaram Aged About 30 Years R/o Mohla, Tah. Mohla, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶21

3. Rahi Bai W/o Jairam Sinha Aged About 26 Years R/o Bajrangpur Nawagaon, Tah. And Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶22

4. Saroj Bai W/o Hemrai Sinha Aged About 24 Years R/o Arjuni, Tah. And Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶23

5. Rukhmani Bai W/o Purshottam Sinha Aged About 27 Years R/o Junihatri, Tah. And Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶24

6. Kanti Bai W/o Manharan Sinha Aged About 47 Years R/o Dabka, Tah. Khairagarh, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶25

7. Chhabilal S/o Guhariram Sinha Aged About 47 Years R/o Amlipara, Khairagarh, Tah. Khairagarh, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶26

8. State Of Chhattisgarh S/o Thru- Collector, Rajnandgaon, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh

¶27

9. Smt. Rampyari Sinha W/o Late Sarjuram Sinha D/o Late Guha Alias Jagdish Aged About 65 Years R/o Village Mohlai, Tahsil And District - Dug (C.G.) As Per Honble Court Order Dated 26-04-2022 And 28-07-2025

¶28

... Respondent(s)

¶29

For Appellant(s)	: Mr. Sudhir Verma, Advocate
For State	: Mr. Anand Gupta, Dy. G.A.
For Private Respondent	: Mr. M.L. Saket, Advocate

¶30

3

¶31

Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board

¶32

19.02.2026

¶33

The defendants/ appellants have preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 23.01.2013 passed by the Learned Additional District Judge, Khairagarh in Civil Appeal No. 05-A/2006 (Smt. Mahabati & Ors. Vs. Heeralal Sinha & Ors.) affirming the judgment and decree dated 25.03.2006 passed by the Trial Court in Civil Suit No. 37-A/98 (Heeralal Sinha & Ors. Vs. Smt. Mahabati & Ors.) whereby the learned trial Judge has allowed the suit of the plaintiff/ respondent. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

¶34

The plaintiff preferred the suit for declaring the WILL dated 02.01.1985 as void and for partition of the land measuring 7.56 acres pleading inter alia that after the death of the plaintiffs’ mother, their father Dayaram married Sughiyabai according to customary rites. During his lifetime, land bearing Khasra No. 91/2, area 7.56 acres, situated at Village Mutipar, was purchased and later recorded in the names of Defendant No. 1 and Sughiyabai. After the death of the plaintiffs’ father and grandfather, Defendant No.1 initiated mutation

¶35

4

¶36

proceedings on the basis of an alleged Will said to have been executed by Sughiyabai. The plaintiffs contend that the Will is forged and fabricated, as the date appears to have been altered and Sughiyabai had never executed any Will in favour of Defendant No. 1. Accordingly, the present suit has been filed seeking declaration that the alleged Will is null and void, that the plaintiffs are lawful heirs entitled to half share in the suit land measuring 7.56 acres described in Schedule ‘A’, and for partition and possession of their share.

¶37

In the written statement, the defendant No. 1 denied the plaint averments and contended that the suit has been instituted solely with an intention to harass the defendant, as the plaintiffs have no legitimate claim or hope of success in respect of the suit property. It was specifically pleaded that neither the plaintiffs nor the deceased Guhri have any right, title or interest in the suit land. It was further submitted that after the death of Sughiyabai, the plaintiffs, out of greed and mala fide intention, have filed the present suit only to cause unnecessary harassment to Defendant No. 1. The defendant asserted that he is in peaceful and continuous possession of the suit property, and therefore prayed for dismissal of the suit.

¶38

On the pleadings of the parties, the learned trial Judge framed as many as 4 issues and given opportunity to the

¶39

5

¶40

parties to adduce evidence, both oral and documentary and after a full fledged trial rendered a decision suiting the plaintiff on the ground that the alleged Will dated 02.01.1985 was surrounded by suspicious circumstances. It was noticed that Sughiyabai was in a frail physical condition and not in a position to move about independently at the relevant time. The Will contained apparent overwriting and cutting in the date, casting serious doubt on its genuineness. Since the Will was in the exclusive possession of the defendant, the burden under Section 106 of the Evidence Act lay upon him to prove its due and valid execution, which he failed to discharge. Consequently, the Will was held to be not duly proved and invalid, and the issue was decided in favour of the plaintiffs. Against the judgment and decree passed by the trial Court the defendant/ appellants have preferred first appeal before the First Appellate Court which has been dismissed vide judgment and decree impugned herein affirming the findings of the trial Court. Aggrieved by the judgment and decree passed by the First Appellate Court, the present Second Appeal has been filed by the defendants.

¶41

Learned counsel for the appellants submits that before the First Appellate Court, an application under Order41 Rule 27 C.P.C. (I.A. No. 02) was filed seeking permission to adduce additional evidence in respect of the Will in question. It is

¶42

6

¶43

contended that though the counsel appearing for the appellants had proposed that the said application would be pressed at the time of final hearing, the First Appellate Court failed to consider and decide the said application and proceeded to dispose of the appeal on merits without adjudicating the same.

¶44

I have heard learned counsel for the parties, perused the material available on record.

¶45

From perusal of the order sheets of the First Appellate Court, it appears that on several occasions the counsel for the appellants sought time to advance arguments on I.A. No. 02 filed under Order 41 Rule 27 C.P.C. However, the record does not indicate that the said application was ever pressed at the time of final hearing. In such circumstances, the contention raised in the present second appeal that the application was not considered by the First Appellate Court cannot be accepted. If the appellants had filed the application, it was incumbent upon them to press the same for adjudication. Unless the application was pressed and rejected, the plea that it was not decided does not give rise to any substantial question of law so as to warrant interference under Section 100 of the C.P.C.

¶46

Further from the material available on record, it is apparent that, after due appreciation of the oral and documentary

¶47

7

¶48

evidence adduced by the parties, the Appellate Court found that the original plaintiff Guhari had sought declaration of his half share in the suit land measuring 7.56 acres and cancellation of the alleged Will dated 02.01.1985. During pendency of the suit, Guhari died after his evidence had already been recorded, and his legal representatives were brought on record. The claim of the defendant was solely based on the said Will, however, despite sufficient opportunity, the defendant failed to adduce cogent evidence to prove its due execution. The revenue records reflected the names of Guhari, Bhagwati Prasad and Sughiyabai, and in absence of proof of a valid Will, the trial Court rightly held that the defendant did not acquire exclusive title over the suit property. The precedents relied upon by the appellants regarding grant of opportunity to lead evidence were held to be inapplicable to the facts of the case. Accordingly, the findings of the trial Court were affirmed, the appeal was dismissed as devoid of merit, and the judgment and decree dated 25.03.2006 were upheld. The impugned judgment and decree is just and proper.

¶49

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

¶50

8

¶51

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.

¶52

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 failed to establish their case by placing cogent and sufficient material. The appellants have failed to demonstrate any perversity, illegality, or misapplication of law in the findings so recorded.

¶53

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.

¶54

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.

¶55

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

¶56

9

¶57

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.

¶58

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.

¶59

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

¶60

10

¶61

available on record and there is no illegality or perversity in the same and they does not call for any interference.

¶62