Dismissed

Ramkumar v. Sudama and Others

Chhattisgarh HC3 Feb 2020SA/343/2008

Case brief

AI extract

What is this about?

This common judgment dismisses two second appeals from a land dispute. The High Court upheld the first appellate court's decision that the civil suit for title and possession was not barred by jurisdiction and affirmed the finding that only specific defendants were in possession of the encroached land.

What did the court decide?

Both second appeals dismissed; judgment and decree of first appellate court affirmed.

Ramkumar Vs Sudama and Others — Partition | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 240 of 2008 Judgment reserved on 30/01/2020

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Judgment delivered on 03/02/2020

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1. Ramlal @ Babai S/o Shivnath (died) through LR's :-

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(A) Karmato Wd/o Late Ramlal @ Babai, Aged about
60 years. R/o Village Rampur, Police Station
Patna, Tahsil Baikunthpur, District Koriya,
Chhattisgarh.

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2.Bharat S/o Ramlal @ Babai, Aged about 36 years.

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Both are Caste Koir R/o Village Rampur, P.S.
Patna, Tahsil Baikunthpur, Distt. Koriya,
Chhattisgarh.

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 --- Appellants/Defendants No. 1 and 2

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Versus

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1. Ramkumar S/o Jagdev, Caste Koir, Aged about 65 years. –-- Plaintiff

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2. Sudama S/o Bole, Aged about 42 years, Occupation Cultivator.

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3. Radhe S/o Bole, Aged about 38 years, Occupation Cultivator.

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All R/o Village Chhindiya, P.S. Patna, Tahsil
Baikunthpur, District Koriya, Chhattisgarh.

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--- Defendants No. 3 and 4

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4. State of Chhattisgarh, through the Collector, Koriya Baikunthpur, Distt. Koriya, Chhattisgarh.

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--- Respondents

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For Appellants/Defendants No. 1 and 2 :-

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Mr. Ashok Kumar Shukla, Advocate
For Respondent No. 1/Plaintiff:-

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Mr. D.N. Prajapati, Advocate

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For Respondents No. 2 & 3/Defendants No. 3 & 4 :-
Mr. Prakash Tiwari, Advocate
For Respondent No. 4/State :-

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Mr. Sanjeev Kumar Agrawal, P.L.

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Second Appeal No. 343 of 2008

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Ramkumar S/o Jagdev Koir, Aged about 70 years,
R/o Village Chhindiya, Tahsil Baikunthpur,
District Korea, Chhattisgarh.

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--- Appellant/Plaintiff

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Versus

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1. Sudama S/o Bole, Aged about 47 years, Occupation Agriculturist.

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2. Radhe S/o Bole, Aged about 43 years, Occupation Agriculturist.

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Both are R/o Village Rampur, Tahsil Baikunthpur,
District Korea, Chhattisgarh.

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--- Defendants No. 3 and 4

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3. Ramlal @ Babai S/o Shivnath, Aged about 60 years, R/o Village Rampur, Tahsil Baikunthpur, District Korea, Chhattisgarh.

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4. Bharat S/o Shivnath, Aged about 38 years, R/o Village Rampur, Tahsil Baikunthpur, District Korea, Chhattisgarh. --- Defendants No. 1 and 2

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5. State of Chhattisgarh, through Collector, Korea (Baikunthpur) District Korea, Chhattisgarh.

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--- Respondents

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For Appellant/Plaintiff:-

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 Mr. D.N. Prajapati, Advocate
For Respondents No. 1 & 2/Defendants No. 3 & 4:-
 Mr. Prakash Tiwari, Advocate
For Respondents No. 3 & 4/Defendants No. 1 & 2:-

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 Mr. Ashok Kumar Shukla, Advocate
For Respondent No. 4/State:-

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 Mr. Sanjeev Kumar Agrawal, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Judgment

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1.Since, both of these above-stated second appeals

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have arisen out of the common judgment and decree
dated 30/04/2008 passed by the first appellate
Court whereby civil appeal No. 38A/2006 preferred
by defendants No. 3 and 4 has been allowed and
civil appeal No. 63A/2006 preferred by defendants
No. 1 and 2 has been dismissed, therefore, they
have been heard together and are decided by this
common judgment.

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2.Second Appeal No. 240/2008 preferred by the
appellants/defendants No. 1 and 2 was admitted
for hearing on the following two substantial
questions of law:-

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“1. Whether the lower appellate Court
was justified in holding that the suit
as framed is not barred by
jurisdiction ?

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2. Whether the lower appellate Court
has erred in decreeing the Plaintiff's
claim without considering the report
dated 28.11.2002 (Ex. P-18) of Nayab
Tahsildar, Baikunthpur ?”

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3.Second Appeal No. 343/2008 preferred by the

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appellant/plaintiff was admitted for hearing on
the following substantial question of law :-

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“Whether the lower appellate Court was
right in holding that the trial Court
has not passed a decree against
Defendants No. 3 & 4 ?”

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(For the sake of convenience, parties would be
referred hereinafter as per their status and
ranking shown in the suit before the trial
Court.)

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4.Sole plaintiff – Ramkumar filed a suit for

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declaration of title, recovery of possession and

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permanent injunction stating inter alia that he is the owner of land bearing old Khasra No. 119/1 admeasuring 1.214 hectares and land bearing old Khasra No. 150 admeasuring 1.368 hectares total area 2.587 hectares; both situated at Village Rampur, P.S. Patna, Tahsil Baikunthpur, District Koriya. During the new settlement, these lands were changed into Khasra No. 287 admeasuring 0.75 hectare and Khasra No. 350 admeasuring 1.65 hectares total area 2.40 and out of his total land, 0.09 hectare was acquired for Government canal. It was pleaded by the plaintiff that during the new settlement, 0.10 hectare of his land has been included in the adjoining land held by defendants No. 1 to 4 for which plaintiff moved an application before the competent authority for correction with regard to the said error made during the new settlement which was ultimately, sent for hearing before the Naib Tahsildar, Baikunthpur, therefore, he is entitled for declaration of title, recovery of 0.10 hectare of his land from defendants No. 1 to 4 and also for permanent injunction to which defendants opposed by filing their written statement and controverted the averments made in

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the plaint by stating that plaintiff is not
entitled for any relief claimed by him.

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5.Learned trial Court, upon appreciation of oral
and documentary evidence on record, held that
defendants No. 1 to 4 have encroached upon 0.10
hectare of plaintiff's land which got included in
defendants' land during the new settlement and
plaintiff is entitled for recovery of possession
of the said land from the defendants and
ultimately, decreed the suit vide its judgment
and decree dated 02/01/2003.

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6.Assailing the judgment and decree of the trial
Court, one appeal was preferred by defendants No.
1 and 2 and another appeal was preferred by
defendants No. 3 and 4. The appeal of defendants
No. 1 and 2 was dismissed whereas the appeal of
defendants No. 3 and 4 was allowed by the first
appellate Court vide its common judgment and
decree dated 30/04/2008, holding that decree of
the trial Court be executed only against
defendants No. 1 and 2.

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7.Questioning the impugned judgment and decree of
the first appellate Court, these two second
appeals have been preferred and they have been

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clubbed together for the sake of convenience;
second appeal No. 240/2008 by defendants No. 1
and 2 and second appeal No. 343/2008 by the
plaintiff wherein substantial questions of law
have been framed in both of these appeals and are
set out at the beginning of the judgment.

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8.Mr. Ashok Kumar Shukla, learned counsel appearing
for the appellants/defendants No. 1 and 2 in
second appeal No. 240/2008 would submit that both
the Courts below have gravely erred in holding
that the Court has jurisdiction to entertain the
dispute ignoring the provisions contained under
Section 89 read with Sections 107 and 257(g) of
the Chhattisgarh Land Revenue Code, 1959. He
would further submit that both the Courts below
have also legally erred in ignoring the report
dated 28/11/2002 (Ex. P/18) of Naib Tahsildar,
Baikunthpur, as such, the judgment and decree of
the trial Court affirmed by the first appellate
Court directing delivery of possession of the
suit land to the plaintiff by defendants No. 1
and 2, being perverse, is liable to be set aside
and second appeal No. 240/2008 deserves to be
allowed which has been seriously opposed by Mr.
D.N. Prajapati, learned counsel appearing for

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respondent No. 1/plaintiff in second appeal No.
240/2008 stating that both the Courts below have
concurrently and rightly granted decree in favour
of the plaintiff and against the defendants as
there is a clear-cut finding recorded by both the
Courts below that defendants are in possession of
the 0.10 hectare of land held by the plaintiff.
He would further submit that the Naib Tahsildar,
Baikunthpur has already decided the application
moved by the plaintiff under Section 89 of the
Land Revenue Code which has also been brought on
record, though not exhibited, but it is an
admitted document, therefore, the jurisdiction of
the civil Court in the instant suit is not at all
barred as only relief for declaration of title
and permanent injunction has been sought and no

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relief with regard to correction of the revenue
records has been sought by the plaintiff in the
civil suit preferred before the trial Court,
therefore, second appeal No. 240/2008, being
devoid of merits, deserves to be dismissed.

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9.Mr. D.N. Prajapati, learned counsel appearing for
the appellant/plaintiff in second appeal No.
343/2008 would submit that the first appellate
Court has committed legal error of law in holding

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that only defendants No. 1 and 2 are in
possession of 0.10 hectare of plaintiff's land
and thereby, modifying the rightly granted decree
of the trial Court in favour of the plaintiff
against defendants No. 1 to 4, as such, the
second appeal No. 343/2008 deserves to be
allowed.

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10.I have heard learned counsel for the parties,
considered their rival submissions made herein-
above and went through the records with utmost
circumspection.

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Second Appeal No. 240/2008 preferred by
defendants No. 1 and 2:-

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11. It has been argued by Mr. Ashok Kumar Shukla, learned counsel for the appellants/defendants No.

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1 and 2 that the civil suit filed by the
plaintiff is barred and the jurisdiction for
correction of survey number, if any, lies with
the revenue Court.

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12.It appears from the record that no express plea
of bar of jurisdiction has been raised before the
trial court and therefore, the trial Court has

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not framed any issue with regard to the
jurisdiction of the Court. This plea was raised

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before the first appellate Court for the very
first time and learned first appellate Court
negatived the said plea of civil suit being
barred by jurisdiction holding that plaintiff's
suit is not for correction of revenue records or
correction in the map which falls under Section
89 read with Section 107(5) of the Land Revenue
Code, and further holding that the aforesaid plea
ought to have been raised before the trial Court
and thereafter, the first appellate Court
recorded a finding that plaintiff's 0.10 hectare
of the land has been included in the land of
defendants No. 1 and 2 and partly affirmed the
judgment and decree of the trial Court.

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13.It is true that the express plea of bar of
jurisdiction was not raised before the trial
Court as the written statement filed by the
defendants is conspicuously silent and there is
no whisper with regard to the bar of jurisdiction
of the civil Court under Section 257(g) of the
Land Revenue Code. The first appellate Court has
negatived the said plea by holding that the suit
filed by the plaintiff was not for correction of
revenue records.

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14.The fact remains that the first appellate Court
has noticed plaintiff's application under Section
89 of the Land Revenue Code for correction of
revenue record which was entertained by the Naib
Tahsildar, Baikunthpur and by its order dated
16/03/2004, revenue records were directed to be
corrected holding that 0.10 hectare of
plaintiff's land has been included in Khasra No.
87, which the defendants have not challenged
though it has been brought on record but not
marked as an exhibit, as such, the first
appellate Court has rightly held that defendants
No. 1 and 2 have failed to take the express plea
of bar of jurisdiction and even otherwise,
plaintiff's suit was only for declaration of
title, recovery of possession and permanent

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injunction, and it was not for correction of
revenue records. Moreover, the order of
correction of revenue records has already been
passed by the Naib Tahsildar, Baikunthpur vide
order dated 16/03/2004 which has also been acted
upon by the trial Court while deciding issue No.
2 in paragraph 12 of its judgment, as such, it
cannot be held that plaintiff's suit was barred

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by jurisdiction in view of the provisions

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contained under Section 89 read with Section 105
and 257(g) of the Land Revenue Code.
Consequently, the substantial question of law No.
1 framed in this appeal is answered in
affirmative.

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15.Now, coming to the 2nd substantial question of law
that the report dated 28/11/2002 (Ex. P/18) was
not considered by the first appellate Court.

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16.The report dated 28/11/2002 (Ex. P/18) is only
the recommendation made by the Naib Tahsildar,
Baikunthpur to the Sub-divisional Officer, as
such, it cannot confer any right to defendants
No. 1 and 2 to rely upon the said document and on
that basis, the concurrent finding recorded by
both the Courts below that plaintiff is entitled
for possession of 0.10 hectare of his land cannot
be set aside. It is hereby re-affirmed and the
substantial question of law No. 2 is answered in
negative.

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Second Appeal No. 343/2008 preferred by the

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plaintiff:-

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17.It is the case of the plaintiff that defendants
No. 3 and 4 are also jointly in possession of
0.10 hectare of his land along with defendants
No. 1 and 2 and so, the first appellate Court

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could not have set aside the decree of the trial
Court against defendants No. 3 and 4.

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18.A careful perusal of the statement of P.W. 1
Subhash Chandra Kushwaha would show that in
paragraph 2, he has clearly stated that
defendants No. 1 and 2 have taken possession of
0.10 hectare of land owned by the plaintiff.
Likewise, similar statement has been made by P.W.
2 Prahlad Kumar in paragraph 2 of his statement

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before the trial Court. In that view of the
matter, learned first appellate Court is
absolutely justified in modifying the decree of
the trial Court holding that plaintiff is
entitled to get possession of 0.10 hectare of his
land from defendants No. 1 and 2. Consequently,
the substantial question of law in this appeal is
answered against the plaintiff.

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19.As a fallout and consequence of the aforesaid
legal analysis, both the appeals i.e. second
appeal No. 240/2008 preferred by defendants No. 1
and 2 as well as second appeal No. 343 of 2008,
being devoid of merits, deserve to be and are
hereby dismissed leaving the parties to bear
their own cost(s).

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20.Decree be drawn-up accordingly.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Ramkumar v. Sudama and Others

Case brief

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Ramkumar v. Sudama and Others

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