Dismissed

Jaynandan Singh and Ors. v. Shailendra Singh and Ors.

Chhattisgarh HC1 Sept 2014SA/1194/1999

Case brief

AI extract

What is this about?

In this second appeal, the High Court rejected the challenge to findings regarding title and execution. Upholding the lower courts\' decree, it held that revenue records create a rebuttable presumption of correctness under the CG Land Revenue Code, which remained unchallenged by the appellant, and the encroachment claims were sufficiently specific.

What did the court decide?

Second appeal dismissed; appellants to vacate possession of encroached area and remove obstruction; parties bear own costs.

Jaynandan Singh and Ors. Vs Shailendra Singh and Ors. — Property and Title | Chhattisgarh HC (2014)

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m TH‘" HIGH COURT OF JUDICATURE AT JAHALPUR § fsecona Appeal No. [wq of 1999 V^v30 SECOND APPEAL UNDER SECTION 100 CJDE OF CIVIL PROCEDURE,1908 .9 Appellant wagnandan Singn, Since deceased, We; ena ant ’ thrcugh his legal representatiges a) Smt. Vijay Laxmi Singh, aged 42 years, widow of Jaynanaan Singh; b) Rajan Kumar Singh, aged 14 yearm c) Kamaljit $ingh,aged 13 years; d) Ku.Tripti Singh, aged 16 years, N0s.b) to d) all song and daughter 0f late Jaynandan Singh, minors, through natural guardian their mother Smt.Vijay Laxmi Singh widow oi J aynand an Singh; All residente of villaeg Tifra, District Bilaspur,M.P. Ver S118 Reegondent‘ Shailendra Singh, gince through >dead, Pl 1nti£F his legal representatives z ea) Smt.Savita Singh, aged‘ 47 years, widow of Sailendra $ingh, resident of village Bhurkot, Tainail Janjqir, Distriét Bilastour,i~’1.P. b) SmtJvianisha alias Billu,aged 27 years, wi£e o£ Rakesh Kumar, resident o£ village Post Nulmula, Tahsi'l Janjgir, District

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Bilasour,Wx.P.

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Ku.1‘«ianjusha,aged about 25 years; Ku.Anjusha,aged about 23 years; Ashutésh,aged 21 years; Ku.§»’ianjula, aged about 19 years; Ashuman, aged 18 years; Nos.c) to @) all son and daughtera o£ late Sha‘ilendi‘a Singh; and residents of village Dhurkot, Tahsil Janjgir, District Eila spur,M.P.

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4f.

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Claim in appeal £Gr permanent injunction Valued at Rs.300.00

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Court-iee a££ixed Rs. 30. 00

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for removal of obstruction by defendant valued at Rs.1000.00

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Court—fee a£fixed Rs.lO0.00 Total Court-£ee a££ixed Ps.130.00 (A53 in Courts below )

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Being aggrieved by judgmeny and decree, gated 13—8“-1999, in Civil Appeal No.9o—a/99, passed^by Additional District Judge, Bilaspur, at’iirming the judgment and decree, mated 27-3-1995, in Civil $uit No;§§$§/93, passea by rind ’the Civil Judge, Class I, Bilaspur, defendantyappellanti preferys this appeal which involves substantial questions at law on the Eollowing facts

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S.A. No.1194 of1999 Page 1 0f5

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HIGH COURT OF CHHATTISGARH AT BILASPUR \ Second AQQeal No.1194 of 1999

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Aggellant Jaynandan Singh, since through his legal representatives a) Smt.Vijay Laxmi Singh b) Rajan Kumar Singh c) KamaljitSingh

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d) Ku.TriptiSingh

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Versus

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Resgondent Shailendra Singh, $ince Plaintiff through his legal represeritatives

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a) Smt.Savita Singh

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b) SmtManisha arias Billu

c) Ku.Manjusha

d) Ku.Anjusha

e) Ashutosh

f) Ku.Manjula

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g)^Ashuman

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(Second Appeal

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Mr.Sanjay S.Agrawal, counsel for the appellants.

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Mr.Tarkeshwar Nande, counsel for the respondents.

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-____________________~-_-_-o____r

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' (SB: Hon’bre Mr. T.P. Sharma, J.) JUDGMENT

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(2-9—2014)

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Present second appeal filed against the judgment & decree dated 13.8.1999 passed by the Additional District Judge, Bilaspur, in Civil Appeal No.90—A/99, affirming the judgment and decree dated 27.3.95 passed^by the 3“ Civil Judge Class-l, Bilaspur, in Civil Suit No.66A/93, decreeing the suit of the plaintiff, has been admitted for consideration on the following substantial questions of law:-

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o Whether the concurrent findings of both the Courts below regarding plaintiff’s exclusive title over the suit property is

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(B9

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SA. No.1194 of 1999 Page 2 0f5

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perverse for want of legal evidence oral as well as documentary ? o Whether ihe decree for removal of superstructure allegedly/unauthorizedly constructed by the defendants prior^and during suit is in-executable for want of proper description ?

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As per plaint allegation, original plaintiff Shailendra Singh, predecessor-in-tltle of respondents (a) to (g)^was owner of khasra No.1169 and 1170, area 1.12 and C.45 acres situate at village Tifra P.H.No.23, Distt.Bilaspur. Predeces‘sor-in-title of the appellants (a)^to

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(d)^{hasmadeconstruction} upon about 800 sq.ft. of th‘e land owned by the plaintiff in the year 1990. He also obstructed path. Proceeding under Section 145 of the Cr.P.C. was initiated and finally civil suit for removal of obstruction after demolition of construction made by the defendant, predecessor-in-title and permanent injunction was filed.

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l amt; 12.; s ~‘

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By filing written statement, the defendant has alleged that khasra Nos.1169 and 1170 were owned by Kala Bai, grandmother of the plaintiff^anddefendant i.e. Kala Bai was having two daughters namely Krishna Bai and Prakash Bai, he was son of Krishna Bai and the plaintiff^wasson of Prakash Bai. They inherited the property jointly. He has not obstructed path/approach road, he has not made construction and at least Rs.25,000/— would be required for demolition of construction made by him.

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After providing opportunity of hearing to the parties, the trial Court decreed the suit and the appellate Court affirmed the judgment and decree passed by the trial Court. Learned counsel for the appellants vehemently argued that concurrent finding of both the Courts below regarding the plaintiff’s exclusive title over the suit property is not based on legal evidence and finding is perverse. Learned counsel further argued that plaintiff (PW-1) Shailendra Singh himself has admitted in para 5 of his evidence that he has inherited the property of his maternal grandmother Kala Bai. Entry in revenue records are rebutabble and presumption is

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S.A‘ No.1194 of 1999 Page 3 of 5

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rebuttable, but presumption is not conclusive in nature, therefore, only on the basis of Exs.P/1 to P/4, the plaintiff^cannotheld title over the property. Learned counsel also argued that in absence of any evidence conclusive in nature, the plaintiff is not entitled for any decree. Learned counsel contended that even the plaintiff^has not given^theactual map with dimension to establish the encroached area. in absence of such evidence, even the decree is not executable.

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Learned counsel for the appellants placed reliance in thé matter of Union of India and others v. Vasavi Cooperative Housing Society Limited and others reported in (2014) 2 SCC 269 in which the Supreme Court has held that in case of suit for declaration of title and possession, burden to prove the title is always upon the plaintiff irrespective of whether the defendants prove their case or not and weakness of the defendants would not be a ground for grant of relief to the plaintiff. Entries in the record of rights carry evidentiary value, but they itself not any confer any title on the parties and the parties are required to prove their title independently. On the other hand, learned counsel for the respondents opposed the appeal and argued that the plaintiff has independently proved his title and possession over the property and also proved the encroachment made by the defendant in specific area. Both the Courts below have decreed the suit on the basis of specific evidence of the plaintiff^and not upon the weakness of the defendant.

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As per paras 1 and 5 of the evidence of plaintiff^Shailendra Singh (PW-1),^hewas owner of khasra Nos.1169 and 1170, area 1.12 and 0.45 acre situate at village Tifra. In para 5 0f his cross-examination, he has stated that his land is adjoining to the land left by his maternal grandmother.^As per evidence of defendant Jaynandan Singh (DW—1), his maternal grandmother^has left the property inherited by himself and plaintiff. As per his evidence and pleading, it appears that he was claiming that khasra Nos.1 169 and 1170 were the property left by his maternal grandmother^and he along with plaintiff^has inherited the property,^butthe plaintiff has not pleaded or deposed such, inter alia, he has deposed that he has inherited the property left by her maternal

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(334/

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S.A. No.1194 of 1999 Page 4 of⁵

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grandmother‘^{whichwasadjoiningtothepropertyindisputeownedby} him. in support of his titie, he has filed and proved^Exs.P/3and P/4, which are copies of,revenue records showing the ownership and possession^{upontheaforesaidpropertyalongwithotherproperty.}

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As held by the Supreme Court in the matter of Vasavi Cooperative Housing Society Limited, revenue^{recordsarenotsufficientto} prove the title of the parties.

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As per Section 117 of the C.G. Land Revenue Code, 1959 (for^short ‘Code’), entries made in the revenue records shaii be initially

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presumed^{tobecorrectuntilthecontraryis} proved i.e. presumption is rebuttable.

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ln the present case, the defendant has^{failedtoadduceanyevidence} to rebut such entry. In absence of such evidence in^rebuttableas per Section 117 of the Code, entries shall^be presumed^tobecorrect.

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Plaintiff Shailendra Singh (PW-1) has specifically^{deposedthathe} is owner of the property and has filed the documents of records. in absence of any rebuttable evidence, his evidence to prove the title over the property is conclusive in nature and is sufficient to prove the fact that the plaintiff was owner of the propertyⁱⁿ question^andsame was not the property left by his maternal grandmother.

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As held by the Supreme Court in the^{matterofVasaviCooperative} Housing Society Limited, the plaintiff^has successfully proved the title over the property independently and not only on the basis of revenue records or weakness of the^defendant.

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Finding of both the Courts below^relatingto prove^oftitleofthe plaintiff is not perverse and is based on legal,^{oralanddocumentaryevidence.} in plaint^{thespecificareahasbeen} mentioned, map has been filed and in evidence of plaintiff Shailendra^Singh (PW-1),^hehasdeposed in para 7 that the defendant has encroached about 800 sq.ft. and breath of encroached land is 5 ft. and length is 3 ft., total area is 800 sq.ft. He has also encroached upon^the government^{landadjoiningto} the aforesaid land and thereby obstructed^{theapproachroadfromhis} house to road. Obstruction of approach^{roadhasnotbeendisputedby}

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"MI 33

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SA. No.1194 of1999 Page 5 0f5

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the defendant and has admitted in para 11Vof his evidence, but has deposed that he is having way from back side of the house. Area of encroached land is specific in pleading and evidence. 15. Consequently, substantiai question of law Nos.1 and 2 are decided as negative. This is peculiar case between sons and grandchildren of two sisters and property in dispute is about 800 sq.ft. upon which the appellants have constructed the house and encroached the house also and obstructed path of the respondents. Considering the permanent nature of construction, it may be appropriate to the appellants to vacate the possession of encroached area by themselves and to remove the obstruction upon the approach road/path.

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With the aforesaid observation and on the basis of finding, l do not find any substance in the appeal. The appeal being devoid of merit is liable to be and is hereby dismissed.

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Parties shall bear their own cost.

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Advocate fees, if certified, shall be as per schedule.

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Decree be drawn up accordingly.

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Sdi-
'
T. P. Sharma 3
Judge

Jaynandan Singh and Ors. v. Shailendra Singh and Ors.

Case brief

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Jaynandan Singh and Ors. v. Shailendra Singh and Ors.

Case brief

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