The High Court of Chhattisgarh held that a plea regarding the identity and demarcation of land, not pressed earlier, cannot be raised for the first time in a second appeal. The substantial question of law was answered in favor of the lower courts.
Second appeal dismissed; decree held good; liberty to file title suit reserved.
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1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.382 of 2006
Tilakram Bani (Dead) through his LR's
1a. Smt. Laxmi Kesharwani, Wd/o. Late Tilakram, aged
about 52 years,
1b. Priyanka Kesharwani, D/o Late Tilakram, aged about
23 years,
Both are residence of Gharghoda, Tahsil-Gharghoda,
District-Raigarh (CG)
(LR's of defendant No.3)
---- Appellants
Versus
Debiram Bani S/o Late Rameshwar Bani Aged about 45 years, Occupation-Former, R/o Village Gharghoda, Teh.Gharghoda, Distt. Raigarh (CG)---- PlaintiffJeetu @ Jitandra Kumar Panda S/o Bhagawatiya Panda Aged about 30 years,Bhagawatiya Panda (died and deleted)---- Plaintiffs
State of C.G. Through Collector, Raigarh---- Respondents
For Appellant/LR's of : Mr.Vineet Kumar Pandey,
Defendant No.1 Advocate
For Res.No.1 & 2/Plaintiff : None present
For Respondent No.4/State: Mr.Akash Pandey, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment on Board
06/11/2019
This second appeal preferred by the appellant/defendant No.3 was admitted for hearing by formulating the following substantial question oflaw:-
“Whether both the Courts below are justified
in granting permanent injunction without
demarcation of the land in question ?”
[For the sake of convenience, the parties would
be referred hereinafter as per their status
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shown in the suit before the trial Court].
The plaintiff and defendant No.3 both are brothers. The plaintiff filed a simpliciter suit for permanent injunction stating inter-alia that in the suit land owned by him shown in map annexed with the plaint admeasuring 17”x127”, the defendants are encroaching by making construction, as such, the defendants be restrained from interfering with his lawful possession, which was opposed by the defendants by filing written statement stating inter-alia that defendant No.3 is in exclusive possession of the suit land and as such, the plaintiff is not entitled for permanent injunction.The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 21.7.2005, held that the plaintiff is in lawful possession of the suit land and the defendants are restrained from interfering with his lawful possession, against which, only defendant No.3 preferred first appeal. The first appellate Court affirmed the judgment and decree of the trial Court by dismissing the appeal. Being aggrieved and dissatisfied with the judgment and decree of the first appellate Court, this second appeal under Section 100of the CPC has been preferred by the
appellant/defendant No.3, in which substantial
question of law has been formulated and set-out in the
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opening paragraph of this judgment. During pendency of
the instant second appeal, defendant No.3 died and his
legal representatives were brought on record.
Mr.Vineet Kumar Pandey, learned counsel for the appellants/legal representatives of defendant No.3, would submit that both the Courts below were absolutely unjustified in granting decree for permanent injunction in favour of the plaintiff without demarcation of the suit land as it is abadi land and not specific land, which is owned by the plaintiff. Therefore, the judgment and decree of both the Courts below deserve to be set aside.None present for respondents No.1/plaintiff though served.I have heard learned counsel for the appellants/legal representatives of defendant No.3, considered his submissions made hereinabove and also went through the records with utmost circumspection.The plaintiff filed a suit for permanent injunction simpliciter stating inter-alia that the defendants particularly defendant No.3 are encroaching over the suit land by digging foundation stone and therefore, the defendants be restrained from interfering with his lawful possession, though defendant No. 3 by filing written statement raised the question of identity of the suit land, but it appears from record that it was4
not pressed into service and no issue was framed in
this regard. Even in first appeal, no such ground was
raised and therefore, no such separate issue was
framed and considered by the trial Court as well as by
the first appellate Court. The trial Court and the
first appellate Court have clearly held that
defendants No.1 to 3 particularly defendant No.3 are
constructing over the area 17”x127” owned and held by
the plaintiff, the plaintiff is in possession of the
suit land and therefore the defendants are restrained
from interfering with possession of the plaintiff, as
such, issue of identity and demarcation of the land
was not pressed into service by defendant No.3 before
the trial Court as well as before the first appellate
Court and for the first time, such a ground cannot be
permitted to be raised before this Court. Even
otherwise, it cannot be held that identity of the land
is in question and no decree could have been passed in
favour of the plaintiff, as such, both the Courts
below have not committed any illegality in granting
decree for permanent injunction in favour of the
plaintiff.
Learned counsel for the appellants/legal representatives of defendant No.3 submits that defendant No.3 is title-holder of the suit land and therefore, decree for permanent injunction could not have been granted in favour of the plaintiff. The5
plaintiff has filed a suit for permanent injunction
simpliciter, in which the trial Court by holding that
the plaintiff is in possession of the suit land
proceeded to consider and granted decree for permanent
injunction in his favour, which has been affirmed by
the first appellate Court. Finding recorded by both
the Courts below that the plaintiff is in possession
of the suit land and the defendants are encroaching
over the suit land is finding of fact based on
evidence available on record, in which I do not find
any illegality or perversity. The substantial question
of law is answered in favour of the plaintiff and
against the defendants. However, defendant No.3 is at
liberty to file comprehensive suit for declaration of
title, if any and pray for appropriate relief.
Accordingly, the second appeal is dismissed reserving the aforesaid liberty in favour of appellants/legal representatives of defendant No.3. No cost(s).A decree be drawn-up accordingly. Sd/-
(Sanjay K. Agrawal)
Judge
B/-
2 issues framed by the court
Whether both courts were justified in granting a permanent injunction without demarcation of the land in question?
Whether the issue of identity and demarcation of the land could be raised for the first time in second appeal?
1 provisions across 1 enactments
Tilakram Bani (Dead) through his LRs
Debiram Bani
Jeetu @ Jitandra Kumar Panda
State of C.G.
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court