In a second appeal under Section 100 of the Code of Civil Procedure, the court cannot interfere with concurrent findings of fact unless they are shown to be perverse, based on no evidence, or contrary to law, as the scope of review is limited to substantial questions of law.

Judgment on Board

1. The plaintiff/appellant has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 07.10.2016 passed by the Learned 1st Additional District Judge, Manendragarh, District Koriya C.G. in Civil Appeal No. 01-A/2016 (Ramlal Vs. Shyamwati & Anr.). Arising out of the judgment and decree dated 05.12.2015 passed by the Trial Court in Civil Suit No. 08-A/2011 (Ramlal Vs. Shyamwati & Anr. ) whereby the learned trial Judge has dismissed the suit of the plaintiff/ appellant and partly allowed the counter-claim of the defendant’s. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

2. The plaintiff instituted the suit seeking declaration of title, permanent injunction and declaration of the mutation order as null and void in respect of the land situated in village Naudhiya P.H. No. 4 Tehsil Bharatpur, District Koriya, C.G. pleading inter alia that the disputed land situated at Village Naudhiya, P.H. No. 4, Tahsil Bharatpur, District Korea (Chhattisgarh), bearing Khasra Nos. 428, 708, 709 and 710 having an area of 0.97, 0.96, 0.10 and 0.08 hectares respectively, total measuring 2.11 hectares, originally belonged to late Babadeen, son of Devidin. Late Babadeen had only one wife, namely Rambai, and the plaintiff is the only child born out of their wedlock. It is contended that the plaintiff has been in possession of the suit land for the last 30–35 years since the lifetime of his father and continues to remain in possession thereof. The plaintiff further stated that late Babadeen executed a Will dated 25.01.2007 in favour of the plaintiff in respect of the suit land. However, defendant No.1, is the wife of Bahori Panika and a resident of Village Belgaon, and defendant No.2 Shyamwati, is the daughter born out of the wedlock of Kuwariya (defendant No. 1) and Bahori Panika, and not the legal heirs of late Babadeen. Despite this, the defendants falsely claimed themselves to be the legal heirs of late Babadeen and, through Gram Panchayat Naudhiya, got their names recorded in the revenue records over the suit land by order dated 29.02.2008. Aggrieved by the said mutation order, the plaintiff preferred an appeal before the Court of the Sub-Divisional Officer, Bharatpur, District Korea, which was dismissed in default on 30.12.2010. After the said order, the defendants started browbeating the plaintiff with dispossession from the suit land. Hence, the plaintiff has filed the present suit seeking declaration that the mutation order dated 29.02.2008 is illegal and ineffective; declaration of the plaintiff as the sole owner; possessor of the suit land; and for grant of permanent injunction against the defendants.

3. Defendant No. 1 having died prior to filing the written statement, the written statement has been filed by Defendant No. 2. It is contended that late Babadeen was the owner of about 12 acres of land, out of which 6 acres had been given to the plaintiff about 25 years ago, and the plaintiff was separated from the family. After obtaining mutation of his name over the said land, the plaintiff has been cultivating the same separately. Therefore, having been separated during the lifetime of late Babadeen, the plaintiff has no right, title or interest over the present suit property. It is further pleaded that Defendant No. 1 along with Defendant No. 2 has been cultivating the suit land continuously. After the death of Rambai, the first wife of late Babadeen and mother of the plaintiff, late Babadeen married Kuwariya bai (defendant No.1), who had earlier separated from her for