Smt. Dulaurin Bai Vs Abhishek Kumar Verma

1 - Abhishek Kumar Verma S/o Ajay Prasad Verma Aged About 38 Years R/o Plot No. 02, Pink Lan, Maitrikunj, Risali, Bhilai Tehsil And Distt. Durg, Chhattisgarh.

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2 - Smt. Savitri W/o Late Dhalu Ram Sahu Aged About 60 Years R/o Village Khopli, Tehsil And Distt. Durg, Chhattisgarh.

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3 - Durga D/o Late Dhalu Ram Sahu Aged About 15 Years Through The Natural Guardian Mother Smt. Savitri, R/o Village Khopli, Tehsil And Distt. Durg, Chhattisgarh.

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4 - Bharti D/o Late Dhalu Ram Sahu Aged About 13 Years Through The Natural Guardian Mother Smt. Savitri, R/o Village Khopli, Tehsil And Distt. Durg, Chhattisgarh.

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5 - Mona D/o Late Dhalu Ram Sahu Aged About 12 Years Through The Natural Guardian Mother Smt. Savitri, R/o Village Khopli, Tehsil And Distt. Durg, Chhattisgarh.

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6 - Rekha D/o Late Dhalu Ram Sahu Aged About 16 Years Through The Natural Guardian Mother Smt. Savitri, R/o Village Khopli, Tehsil And Distt. Durg, Chhattisgarh.

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7 - Renu Sahu S/o Late Dhalu Ram Sahu Aged About 42 Years R/o Bajrang Chowk, Ruabandha Basti, Bhilai, Tehsil And Distt. Durg, Chhattisgarh.

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8 - State Of Chhattisgarh Through District Collector, Distt. Durg, Chhattisgarh.

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…. Respondent(s)

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(Cause title is taken from CIS)

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For Appellant(s)	: Mr. Akash Kumar Kundu, Advocate
For Respondent/State	: Mr. Malay Jain, Panel Lawyer

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Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board

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13/04/2026

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The present Second Appeal has been preferred by the plaintiff under Section 100 of the Code of Civil Procedure, 1908, assailing the impugned judgment and decree dated 12.09.2025 passed by the learned 3^rd Additional District and Sessions Judge, Durg (C.G.) in Civil Appeal No. 147-A/2024 (Smt. Dulaurin Bai vs. Abhishek Kumar & Ors.), affirming the judgment and decree dated 30.07.2024 passed by the learned Addl. 1^st Civil Judge Senior Division to the Court of 1^st Civil Judge, Senior Division, Durg

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(C.G.), in Civil Suit No. 119-A/2022 (Smt. Dulaurin Bai vs. Abhishek Kumar & Ors.), whereby the civil appeal filed by the appellant/ plaintiff was dismissed. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the Trial Court.

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The plaintiff has instituted the suit against the defendants seeking a decree for declaration to the effect that the sale deed dated 16.08.2017 is illegal, void and not binding upon her pleading inter alia that the agricultural land bearing Khasra Nos. 335/1 and 339, admeasuring 0.21 and 0.47 hectares, respectively, situated at Village Khopli, P.H. No. 43, R.N. No. Anda, Tahsil and District Durg (C.G.), was recorded in the name of the plaintiff and she has been in possession thereof carrying out agricultural activities. It is further averred that the defendants, by playing fraud, got the said land transferred in their name by executing a sale deed dated 16.08.2017, by impersonating the plaintiff and her daughter through some other persons, as neither the plaintiff nor her daughter were present before the Sub-Registrar at the time of execution and registration of the said sale deed. It is further pleaded that the cause of action arose on 10.07.2020, and the plaintiff has valued the suit at Rs.7,00,000/- and affixed court fee of Rs.500/-, praying for a decree declaring the said sale deed as null and void.

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Per contra , defendant No.1 has filed his written statement denying

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the entire claim of the plaintiff and has contended that he had purchased the suit land after paying the full consideration amount and got the same duly registered in his name. It is pleaded that prior to execution of the sale deed, an agreement to sell was executed between the parties, pursuant to which the plaintiff received the advance amount and thereafter, upon receiving the balance consideration, remained present before the Sub-Registrar and got the sale deed registered. It is further averred that the plaintiff has set up a false and concocted cause of action, inasmuch as she had earlier filed an application dated 17.06.2019 before the Court seeking to implicate defendant No.1 and other persons, which has already been rejected. It is also contended that the plaintiff, in collusion, has unnecessarily impleaded her daughter Renu Sahu as a defendant. The suit is further stated to be barred by limitation, and hence, liable to be dismissed.

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Defendant Nos. 2 to 8 remained ex parte in the proceedings and did not file any written statement.

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After framing the issues and upon due appreciation of the oral as well as documentary evidence available on record, the learned Trial Court dismissed the suit filed by the plaintiff, holding that the plaintiff failed to establish her title and possession over the suit land. Aggrieved by the said judgment and decree dated 30/07/2024, the plaintiff preferred a First Appeal under Section 96 r/w Order 41 of the Code of Civil Procedure before the learned

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First Appellate Court. The learned First Appellate Court, on reappreciation of the entire evidence on record, affirmed the findings recorded by the Trial Court and dismissed the appeal by the impugned judgment. Hence, the present appeal.

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(a) Learned counsel for the appellant submits that the impugned judgments and decrees passed by the learned trial Court as well as the First Appellate Court are wholly illegal, perverse and contrary to the settled principles of law. He submits that both the Courts have failed to consider the material admissions made by defendant No.1 in his cross-examination, which clearly support the case of the plaintiff, yet the suit has been erroneously dismissed in disregard of the principle of preponderance of probabilities. He further submits that the finding regarding limitation is also unsustainable in law, inasmuch as both the Courts failed to take into account the order dated 10.01.2022 passed by the Supreme Court in In Re: Cognizance for Extension of Limitation , whereby the period from 15.03.2020 to 28.02.2022 stood excluded, and therefore, the suit cannot be held to be barred by limitation.

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(b) Learned counsel also submits that the Courts have gravely erred in dismissing the suit without appreciating that defendant No.1 failed to prove payment of consideration and did not examine any attesting witness to the sale deed, thereby rendering the transaction doubtful. Learned counsel would contend that the

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alleged agreement to sell dated 03.08.2017 (Ex./D-35) has been wrongly relied upon, as the same was executed only by defendant No.2, who was neither the sole owner nor competent to deal with the entire property, which was jointly held by other co-owners. Thus, the findings recorded by both the Courts suffer from patent illegality and perversity, giving rise to substantial questions of law for consideration.

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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.

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In the present case, both the learned Trial Court as well as the learned First Appellate Court, upon due appreciation of the pleadings and the oral and documentary evidence available on record, have concurrently held that the suit filed by the plaintiff is not maintainable and is liable to be dismissed. Both the Courts have recorded a categorical finding that the plaintiff had knowledge of the execution of the impugned sale deed dated 16.08.2017 at least by 25.10.2018, as evident from her own admissions and the documents brought on record, yet the suit came to be instituted only on 26.04.2022, beyond the prescribed period of limitation of three years, and without seeking any benefit under the provisions of the Limitation Act.

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Both the Courts have further held that the plaintiff failed to

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establish her possession over the suit property and, despite the defendant being in possession, did not seek the consequential relief of possession. The Trial Court has also found that the plaintiff failed to prove her title and entitlement to relief, and consequently declined the relief of permanent injunction. The learned Trial Court dismissed the suit on the ground that the plaintiff 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 :-

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“ 34. Discretion of court as to declaration of status or

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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:

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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.

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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.”

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A plain reading of the proviso to Section 34 of the Act of 1963

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makes it clear that where the plaintiff is 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 barred in cases where the plaintiff, despite being able to seek complete relief, restricts the claim to declaration simplicitor.

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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.

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The learned Trial Court, while adjudicating the issue relating to possession, has placed reliance on the inspection report (Ex. P/30) prepared by the concerned Patwari, which clearly indicates that the possession over the suit property was with defendant No.1. The said report, being a contemporaneous official record, remained unrebutted and unchallenged by the plaintiff during trial. On the basis of the said inspection report, the Trial Court has recorded a categorical finding that the plaintiff was not in possession of the suit land.

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Moreover, a bare perusal of the evidence of the plaintiff further fortifies the aforesaid finding, inasmuch as in paragraph 14 of her cross-examination she has candidly admitted that defendant No.1

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has constructed a room over the suit property, that he frequently visits and uses the said premises, and his name is recorded as Bhumiswami in respect of the suit land. Though the plaintiff has taken a plea that the alleged construction on the suit land was raised by defendant No.1 during the pendency of the suit, no application was ever moved by her before the Trial Court seeking appropriate relief in that regard. These clear and unequivocal admissions on the part of the plaintiff go to establish that the possession of the suit property was with defendant No.1 and not with the plaintiff, thereby rendering the plaintiff disentitled to a decree for declaration simplicitor in absence of a prayer for recovery of possession and consequently, in absence of any relief for recovery of possession, the suit for declaration simplicitor was held to be not maintainable.

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Thereafter, the learned First Appellate Court, while re-appreciating

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the entire evidence, has affirmed the findings of the Trial Court and held that although there was material indicating irregularities in the execution of the sale deed, the plaintiff, having failed to institute the suit within limitation and having omitted to seek the necessary consequential relief, is not entitled to any declaration in law. The Appellate Court thus upheld the dismissal of the suit on the grounds of limitation and non-maintainability under Section 34 of the Act of 1963.

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Thus, the concurrent findings recorded by both the Courts are based on proper appreciation of evidence and settled principles of law, and no perversity, illegality, or substantial question of law arises so as to warrant interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.

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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 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.

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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 appellant/ plaintiff failed to establish her case by placing cogent and sufficient material. The appellant failed to demonstrate any perversity, illegality, or misapplication of law in the findings so recorded.

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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.

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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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Be that as it may, the argument advanced by learned counsel for the appellant 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 appellant 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 appellant 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.

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Having heard learned counsel for the appellant 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.

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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.

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Sd/- (Bibhu Datta Guru) Judge

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$. Bhilwar

Smt. Dulaurin Bai v. Abhishek Kumar Verma

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Smt. Dulaurin Bai v. Abhishek Kumar Verma

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