Remanded

Kedar Nath Sahu v. Mohan Lal

Chhattisgarh HC3 Sept 2014SA/724/1999

Case brief

AI extract

What is this about?

In a second appeal regarding an encroachment suit, the High Court held that the lower courts erred in decreeing the claim based solely on an unchallenged Commissioner report lacking detailed factual enquiry. Finding that the respondent failed to prove the identity of the occupied land, the appeal was allowed, and the case was remanded for fresh evidence and demarcation.

What did the court decide?

The impugned judgments and decrees passed by the Courts below are set aside, and the case is remanded to the trial Court for fresh determination based on a detailed demarcation and admission of eviden

Kedar Nath Sahu Vs Mohan Lal — Property and Title | Chhattisgarh HC (2014)

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IN THE HIGH CUURI‘ OF JUDICATURE^AT MAIHYA^?RI&DESH JPBE‘LP‘UR.

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3.2M 7§V\ OF 99 Ma (Emu Kedar Nath sahu^g/o Mawodh wPELLMT mumT Sam, aged. about 35 yearst R/O Bhilai' 3, Taho Patan, Distt. Burg. vsaRsLUF; : /{_/Mo«t(aalal s/o^Chintaram, Sac, g/EQHZWLN.‘“ “1 . ‘ WENT“? ~KR/o Bmla; 3, Tam^p&an, Eistte Durg§ Appeal amalnst the Judgement arm decree 0;. 5th Add. DistQ. Judge, Burg m c A, N0.W 19-A/9'7 at. 1a/10/98 M Mqk^{0w@EQWOQQ"H\939Q}

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w Mr M APPLICANTS : W {\Q’M ”	Uma Bai Sahu Widow of Kedarnath Séhu , Aged about 56 y6ars , R/o Bhilai , ^District : Durg Chhattisgarh. Smt Asha Sahu D/o Kedarnath Sahu , Aged about 29 years , R/o Village Kukda , ^PostKumhari District : Durg Chhattisgarh. )
	Smt Surekha Sahu W/o Kedarnath Sahu , Aged about 27 y€ars , R/o Village KukdaLawatara , ^PostBerla, District : Durg, Chhattisgarh. Smt kiran Sahu W/o Tipu Sahu , Aged about 25 years , R/o Bhilai~3 } ^District : Durg Chhattisgarh.
	__Smt Kirti Sahu ‘ W/o Chandrika Sahu , Aged about 23 years , R/o Village &Post Utai , District : Durg Chhattisgarhi
	Smt Preeti Sahu W/o Suraj Sahu , Aged about 21 years , R/Khursipar , Zone III , Near Durga Mandir ,Bhilai’ District : Durg Chhattisgarh.
	Kum. Lata Sahu D/o Kedarnath Sahu , Aged about 19 years , R/o Bhilai m3 Jain Mandir Road , District : Durg Chhattisgarh.
	Smt Sona Sahu r W/o Bablu Sahu , Aged about 2917 years , R/o Bhilai ^-3Jain Mandir Road District : Durg Chhattisgarh. 7
	Kum Kamni Sahu D/o, Kedarnath Sahu , Aged about 17 years , R/o Bhilai ^-3Jain Mandir Road , District : Durg Chhattisgarh

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Ha ‘VH

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S.A. No.724 of 1999 Page 1 of4

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Appellant Defendant

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HIGH COURT OF CHHATTISGARH^ATBILASPUR Second Agpeal No.724 of¹⁹⁹⁹ Kedar Nath Sahu(died, name deleted) through his legal representatives Uma Bai Sahu and others

Versus

Respondent Plaintiff

Mohanlal

(Second^{AppealunderSection100oftheCPC)}

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Mr.Maiay Shrivastava, counsel for^theappellant

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Mr.AVinash Mishra, counsel for the^respondent.

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(SB: Hon’ble Mr. T.P. Sharma,^J.) ORDER (4—9-2014)

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Present second appeal filed against the judgment and^decreedated 16.10.98 passed by the 5th Additional District Judge, Durg, in Civil AppeaIGNo.1‘9Al97, affirming the judgment and decree^dated 15.4.96 passed^bythe8m Ciyii Judge Class‘JI, Durg, in Civii Suit No.25A/91, decreeing the suit in favour of the respondent,^{hasbeenadmittedfor} consideration on the following substantial question^oflaw:- Whether in view of the finding of^{theappeiiatecourtthat} it was not clear on what basis .Survey^{No.285/30hasbeen} held to include Survey No.95/99, the suit filed by the piaintiff^could be decreed as survey No.95/99 has been shown to be Government land ?

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As per record and submission of the parties, survey number mentioned in substantial question of law^as285/30 is not 285/30, but is 285/13. Same is corrected.

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As per plaint allegation, the^{respondentisownerofKhasraNo.285/13§.} Initially the appellant encroached^uponthe part^{oflandownedbythe} respondent. Then previous Civil^{SLiitNo.97A/81wastriedanddecide} d

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.r._ .

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S.A. No.724 of 1999 Page 2 of4

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over to the respondent from the appellant vide possession warrant Ex.P/1, receipt Ex.P/2 and map Ex.P/3 on 12.1.86. Again the appellant encroached the suit property in the year 1990, then suit for possession and mesne profit was filed by the respondent. The appellant has filed the written statement and alleged that the land in occupation was given to him by the State and in Survey No.97/99 area 5x4 s‘q.meter= 2O sq.meter was given to him in lease and he is in possession^{overtheaforesaidlease} property^and not the land of the respondent. _

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' After providing opportunity of hearing to the parties, the trial Court initially dismissed the suit vide judgment and decree dated 2.4.92. Same was challenged before the lower appellate Court and the lower appellate Court has remanded the case. Commissioner was appointed, Commissioner submitted the report dated 26.2.96, thereafter the judgment and decree dated 15.4.1996 was passed by the trial Court, which was affirmed by the appellate Court. l have heard learned counsel for the parties,^.perusedthe judgment and decree‘impugned, judgment and decree of the trial Court an d records of the Courts below.

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At the outset, learned counsel for the appellants submits tha t

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I. preViously^theoriginal appellant was in possession of the land owned by the respondent, which he has vacated in execution of decree in previous^{suit,thereafterheappliedandobtained} the land in lease for 30 years vide lease deed Exs.D/1 & D/2 and has constructed the

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house & shop. Number of the land is 97/99, however, erroneously it has been mentioned as 95/99 in the plaint.^{Learnedcounselfurther} submits that the present appellant is in possession of the land bearing land No.97/99 and not upon 285/13. Learned counsel also submits

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,;that alleged Commissioner report without any objection is even not for worth consideration in absence of any fatual enquiry.

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On the other hand, learned counsel for the respondent opposes theg appeal and submits that Commissioner report was not objected by anyg of the party, therefore, it became the evidence under Order XXVI Rule?

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S.A. No.724 of 1999 Page 3 0f 4

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10(2) of the Code of Civil Procedure and is binding upon the parties, which clearly reveals that the appellant has encroached the area 38.36 sq.meter owned by the respondent, therefore, both the Courts below have rightly decreed the suit.

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As per evidence of the parties, initially the original appellant had encroached the land owned by the respondent, finally he was evicted from encroached area in execution of decree passed in Civil Suit No.97A/81 on 12.1 .86. As per lease deed, 5x4=20 sq.meter land was lease out by the State tovthe original appellant bearing Plot No.97/99 and as per description of the plot, such plot is situate adjoining to the land of the present respondent. Lease was granted on 20.7.84.

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. In the light of the aforesaid peculiar fact that the lands of the parties are adjoining to each other, close examination relating to identity of the land in question was required that too by expert Commissioner i.‘e. revenue authority and on the basis of detail enquiry/demarcation, only the Court would be in a position to decide the question relating to encroachment made by the present appellant.

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. As per judgment and decree dated 15.4.1996 passed by the trial Court, any of the party has not objected upon the Commissionerreport and on same day at 3.45 p.m. the trial Court has decreed the suit, although case was pending since 23.3.96 till 15.4.96 for hearing'on report of the Commissioner. Even othenNise, the Commissioner report

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d oes not speak that how he reached in'to conclusion that the original appellant has encroached upon the land owned by the respondent and what procedure he has adopted, if preparation of feed book was not possible, then how he measured the lands and what was the fixed point for such demarcation. In absence of aforesaid fact, any unobjected demarcation report by itself is not sufficient to satisfy that theiland encroached by the appellant is owned by the respondent or same is plot No.97/99. Nothing has been proved by any of the party toi establish that Survey No.95/97, may be 97/99 is included in Surveyi No.285/13. The lower appellate Court has also held the same.

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S.A. No.724 of 1999 Page 4 of 4

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. Virtually, in the present case, the respondent has failed to establish that the land occupied by the original appellant is the part of Survey No.283/13.

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. Consequently, the substantial question of formulated of the decision of this appeal is decided as negative. On the basis of aforesaid finding on substantial question of law, the appeal deserves to be and is hereby allowed. On the basis of aforesaid discussion, judgments and decree pasdse^bybotht he Courts below are hereby set asid.e Case^is rettedmi to the Court of first instance for providing opportunity o f agdducin evidence to the parties especially relating to identity of the lan d in question, for proidingv opportutyni for dailet demarcaiont of th e land an d for deidingc the case afresh. Parties shall remnai i n attendance before t he trial Court on 27.10.2014. No order as to Cos.st Sdl-

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T. P. Shanna ‘ l‘

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‘1” Juedg ‘r/fai;

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‘,F7,. t t xxx

Kedar Nath Sahu v. Mohan Lal

Case brief

What is this about?

What did the court decide?

Kedar Nath Sahu v. Mohan Lal

Case brief

What is this about?

What did the court decide?

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