A. F. Rabinson (Died and Deleted) through Lrs Vs Sunil Medhekar

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SOURABH BHILWAR

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Digitally signed by SOURABH BHILWAR Date: 2026.04.17 10:41:57 +0530

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2026:CGHC:16801

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 713 of 2019

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1.A - Jaideep Rabinson S/o. Late A.F. Rabinson, Aged About 50 Years, R/o Jarhabhata Bilaspur, Tahsil & District Bilaspur Chhattisgarh …....Plaintiff

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... Appellant(s)

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versus

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1 - Sunil Medhekar S/o. Late Sharad Medhekar, Aged About 50 Years Profession- Advocate, R/o Rajendra Nagar, Tahsil And District Bilaspur Chhattisgarh......Defendant

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2 - State Of Chhattisgarh Through Collector District Bilaspur Chhattisgarh.......Defendant

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…. Respondent(s)

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(Cause title is taken from CIS)

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For Appellant(s) : Mr. Neeraj Choubey, Advocate For Respondent No.1 : Mr. Manoj Paranjpe, Senior Advocate alongwith Mr. Kabeer Kalwani, Advocate For Respondent/State : Mr. Lekhram Dhruw, Panel Lawyer

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Hon'ble Shri Justice Bibhu Datta Guru

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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 27.08.2019 passed by the learned 1^st Additional District Judge, Bilaspur (C.G.) in Civil Appeal No. 57-A/2019 (A.F. Rabinson vs. Sunil & Anr.), affirming the judgment and decree dated 07.02.2019 passed by the learned 1^st Civil Judge, Class-I, Bilaspur (C.G.), in Civil Suit No. 43-A/2014 (A.F. Rabinson vs. Sunil & Anr.), 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 original plaintiff instituted the suit seeking declaration of title and permanent injunction in respect of the suit property situated at Mouza Jarhabhatha, Tahsil and District Bilaspur, bearing Plot No. 68, Sheet No. 4, Nazul land admeasuring 2400 sq. ft., which was purchased by him from the United Christian Missionary Society India, Bilaspur, vide registered sale deed dated 24.05.1973. It is pleaded that since the date of purchase, the plaintiff has been in peaceful possession of the suit property as its lawful owner, his name has been duly recorded in the revenue records, and he has constructed a residential house thereon after obtaining permission from the Municipal Corporation, Bilaspur. It is further averred that defendant No.1 moved an application before the Nazul Officer for deletion of the plaintiff’s name from the revenue records and also attempted to forcibly dispossess him from the suit property, along

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with extending threats. Thus, the plaintiff asserts lawful ownership and possession over the suit property and contends that the actions of the defendant are illegal and without authority of law.

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Per contra , defendant No.1, in his written statement, has denied the claim of the plaintiff and contended that the suit property neither belongs to the plaintiff nor was it validly purchased by him through the alleged registered sale deed dated 24.05.1973. It is pleaded that the said sale deed executed by U.C.M.S. (India) is void, as the said society was neither the owner nor in possession of the suit property and had already ceased to exist prior to the alleged transaction. It is further contended that the suit property was, in fact, purchased by the defendant’s father, Sharad Madhav, vide registered sale deed dated 01.05.1973. It is also pleaded that though both names were recorded in the revenue records, an application was moved before the Nazul Officer, who had ordered deletion of the plaintiff’s name and the said order has attained finality. It is further averred that the plaintiff was never in possession of the suit property and that possession was handed over to the defendant pursuant to orders passed by the competent authority, and thereafter, the defendant and his father have been in continuous possession. The defendant has alleged that the suit is based on false and concocted facts, suffers from absence of cause of action, is improperly valued, and is also barred by limitation; hence, it is liable to be dismissed with costs.

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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 his title and possession over the suit land. Aggrieved by the said judgment and decree dated 07/02/2019, the plaintiff preferred a First Appeal under Order 41 Rule 1 r/w Section 96 of the Code of Civil Procedure 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 the appeal by the impugned judgment. Hence, the present appeal.

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(a) Learned counsel for the appellant submits that the impugned judgment and decree passed by the learned trial Court as well as the First Appellate Court are perverse, illegal and contrary to the settled principles of law as well as the facts on record. He submits that both the Courts have failed to properly appreciate that the suit property was purchased by the original plaintiff through a registered sale deed dated 24.05.1973, which was duly proved in accordance with law, whereas the defendant failed to produce any cogent documentary evidence to establish his title. He further submits that the learned Trial Court, though framed issues and considered the evidence, erred in dismissing the suit by wrongly invoking the provisions of Order 9 Rule 9 CPC and limitation, without there being any specific issue or opportunity to the plaintiff to address the same.

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(b) Learned counsel contends that the cause of action arose only upon deletion of the plaintiff’s name from the revenue records pursuant to the order passed by the Nazul Officer, and therefore, the suit was within limitation. Learned counsel further contends that once the defendant questioned the validity of the sale deed, the burden lay upon him to challenge the same or lead appropriate evidence, which he failed to do. He also contends that both the Court ignored material evidence, including revenue records and documents proving possession, and failed to consider the variance between pleadings and proof in proper perspective. The learned First Appellate Court is stated to have mechanically affirmed the findings of the Trial Court without independent and proper re-appreciation of the evidence. Hence, he prayed that the findings recorded by both the learned Courts suffer from serious legal infirmity, giving rise to substantial questions of law, and thus warrant interference by this Court.

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On the other hand, learned Senior Counsel appearing for the respondent No.1 would support the impugned judgments and decrees passed by the trial Court as also the First Appellate Court. He would submit that both the Courts have duly appreciated the pleadings as well as the oral and documentary evidence available on record. He would also submit that the plaintiff failed to establish his title and possession over the suit property. According to the learned counsel, the plaintiff failed to discharge the burden of proof as has been enumerated under

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Section 101 of the Evidence Act. By placing reliance upon the decision rendered by the Supreme Court in the matter of Vasantha ( Dead ) Through Legal Representative vs. Rajalakshmi Alias Rajam ( Dead ) Through Legal Representatives report in (2024) 5 SCC 282, would submit that the suit for declaration of title without seeking recovery of possession would not be maintainable when the plaintiff was not in possession of the subject property.

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I have heard learned counsel for the parties 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 plaintiff has failed to establish his title and possession over the suit property bearing Plot No. 68, Sheet No. 4, Nazul land admeasuring 2400 sq. ft. 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 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 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 (supra) 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 Trial Court has categorically found that the plaintiff could not prove that the vendor, namely U.C.M.S. (India), had any valid right, title or interest in the suit land at the time of execution of the sale deed dated 24.05.1973, and thus the plaintiff failed to discharge the burden of proof under Section 101 of the Evidence Act. It has further been held that the plaintiff was not in continuous possession of the suit property and had himself admitted absence of possession, thereby disentitling him from the relief of declaration in view of Section 34 of the Act of 1963. The Trial Court also recorded a finding that although the suit was not barred by res judicata, it was not maintainable under the provisions of Order 9 Rule 9 CPC, as an earlier suit on the same cause of action had been dismissed in default, and the present suit was also barred by limitation.

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The learned First Appellate Court, on re-appreciation of the entire evidence, has affirmed the findings of the Trial Court and held that the cause of action pleaded by the plaintiff was artificial and not borne out from the record, particularly in light of the earlier dismissal of the suit and the existing possession of the defendant. It has further held that the suit was rightly found to be not maintainable under Order 9 Rule 9 CPC and barred by limitation, and that the plaintiff failed to prove any interference or threat by the defendant. Accordingly, the appeal was dismissed as being devoid of merit, and the judgment and decree of the Trial Court were affirmed. Thus, no perversity, misreading of evidence, or

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substantial question of law arises so as to warrant interference with the concurrent findings of fact 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 his 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

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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

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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

A. F. Rabinson (Died and Deleted) through Lrs v. Sunil Medhekar

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A. F. Rabinson (Died and Deleted) through Lrs v. Sunil Medhekar

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