Allowed

Ashok Sharma v. Smt. Phoolmani @ Phoolmati and Ors.

Chhattisgarh HC4 Mar 2021SA/1/2012

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for declaration of title and possession, the High Court held that encroachment cannot be proven merely by oral evidence or probabilities without a valid demarcation report under the Indian Evidence Act. The appellate decree was set aside, and the trial court's dismissal was restored.

What did the court decide?

Second appeal allowed; impugned judgment and decree of the first appellate Court set aside; trial Court's judgment and decree restored.

Ashok Sharma Vs Smt. Phoolmani @ Phoolmati and Ors. — Property and Title | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.1 of 2012

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Ashok Kumar Sharma Son of Late Murlidhar Sharma, aged
about 30 years, R/o Sarangarh, Tahsil Sarangarh,
District Raigarh (CG)

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---- Appellant/Defendant No.1

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Versus

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1. Smt.Phoolmani @ Phoolmati D/o Sammun Khais, aged about 60 years,

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2. Jyoti Prakash S/o Shri Hichkol Khais, aged about 32 years,

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Both resident of Sarangarh, Tahsil Sarangarh, Dist.
Raigarh (CG)

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---- Plaintiffs

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3. State of Chhattisgarh, Through the Collector-Raigarh (CG)

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---- Respondents

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For Appellant/Defendant No.1:

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Mr.Anurag Dayal Shrivastava, Advocate

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For Respondents No.1&2/Plaintiffs:

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Mr.R.N.Pusty, Advocate

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For Respondent No.3:

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Mr.Ravi Bhagat, Dy.G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment on Board

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4/3/2021

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1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant No.1 are as under:-

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“1. Whether the first appellate Court has legally erred in accepting the demarcation report (Ex.P/1) while decreeing the plaintiffs' suit?

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2. Whether the first appellate Court is justified in holding that defendant has encroached upon plaintiffs' land by recording a perverse finding?”

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[For the sake of convenience, the parties would be
referred hereinafter as per their status shown in
the suit before the trial Court].

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2. The plaintiffs filed a suit for declaration of title

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coupled with relief of possession after removing the encroachment allegedly made by defendant No.1 over the part of suit land bearing Khasra Nos.476/3 d , 477/ 3 d and 478/3 d area 0.474 hectare mentioned in Schedule “B” appended with plaint. It is the case of the plaintiffs that they have purchased the suit land as mentioned above admeasuring area 40x109”feet (total area 4360 sq.ft.) from Mohd.Nasir, Mohd.Mustaq and Mohd.Sharif vide registered sale deed dated 4.3.1998 (Ex.P-4) and defendant No.1 has encroached on the part of the suit land i.e. area 2943 sq.ft. shown in Schedule “B” appended with plaint, as such, they claimed decree for declaration of title and possession.

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3. Resisting the suit, defendant No.1 filed his written statement and denied the averments made in the plaint stating inter-alia that he is in possession over the suit land bearing Khasra Nos.476/3, 477/3 and 478/3

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area 0.121 hectare,which he has purchased by

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registered sale deed dated 5.8.1998 (Ex.P-2) and he
has not encroached on the suit land, as such, the suit

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deserves to be dismissed.

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4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment and decree dated 26.11.2008, dismissed the
suit holding that the plaintiffs have failed to
establish their title over the encroached area and
further failed to prove that defendant No.1 has

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encroached over the suit land. On appeal being
preferred by the plaintiffs, the first appellate Court
reversed the judgment and decree of the trial Court
and decreed the suit, which has been questioned by
defendant No.1 in this second appeal under Section 100
of the CPC, in which two substantial questions of law
have been formulated, which have been set-out in
opening paragraph of this judgment for sake of
completeness.

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5. Mr.Anurag Dayal Shrivastava, learned counsel for the appellant/defendant No.1, would submit that the first appellate Court is absolutely unjustified in granting decree for possession. He would further submit that in the present case, decree for possession can only be granted after ascertaining the factum of encroachment and factum of encroachment can be proved only either

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from the report of demarcation of the suit land or
report of the Commissioner by local inspection. He
would also submit that demarcation of the suit land
can only be carried out through the authenticated map
which is prepared under the provisions of the
Chhattisgarh Land Revenue Code and proof thereof is in
accordance with Sections 36 and 60 of the Indian
Evidence Act as in this case the plaintiffs have filed
demarcation report Ex.P-1, which has not been

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supported by the plaintiffs witness PW-5 revenue
inspector Avinash Verma who has conducted demarcation
and the plaintiffs despite having came to know that
the said report is not accepted by the trial Court did
not take any steps before the first appellate Court to
get fresh demarcation, if any, as such, the extent of
encroachment and the fact of encroachment that too by
defendant No.1 has not been established entitling the
plaintiffs to get decree for declaration of title and
possession. He would lastly submit that by oral
evidence, the extent of encroachment cannot be proved,
as such, the judgment and decree of the first
appellate Court deserve to be set aside. He would rely
upon the decision of the Bombay High Court in the
matter of Vijay Shende, Ambabai Shende and Ramkalibai
Singrol v. State of Maharashtra and Chandrabhan

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Nimbhaji Avadhare1.

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6. On the other hand, Mr.R.N.Pusty, learned counsel for respondents No.1 and 2/plaintiffs, would submit that the first appellate Court has rightly analyzed the evidence of the plaintiffs' witnesses and has rightly came to the conclusion that defendant No.1 is encroacher of the plaintiffs' land, therefore, the suit has rightly been decreed, which cannot be taken exception only on the ground that by way of demarcation, the extent of encroachment has not been proved. He would rely upon the judgment of the Supreme Court in the matter of Fali Firoz Shah Bomanji v.

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State of Maharashtra and others2 and the judgment of
the Madhya Pradesh High Court in the matter of
Mangilal and another v. Gaurishankar and another3.

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7. I have heard learned counsel appearing for the parties, considered their submissions made hereinabove and also went through the records with utmost circumspection.

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8. It is not in dispute that the plaintiffs claimed that they have purchased the suit land bearing Khasra Nos.476/3 d , 477/3 d and 478/3 d area 0.474 hectare from Mohd.Nasir, Mohd.Mustaq and Mohd.Sharif by registered sale deed dated 4.3.1998 (Ex.P-4), whereas defendant

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1 (2009) 5 AIRBomR 764

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2 JT 2000 (7) SC 399

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3 AIR 1992 MP 309.

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No.1 has purchased the land bearing Khasra Nos.476/3,
477/3 and 478/3 area 0.121 hectare. It is the case of
the plaintiffs that defendant No.1 has encroached over
2943 sq.ft. of land.

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9. In order to prove the fact of encroachment, the
plaintiffs along with plaint filed demarcation report
(Ex.P-1). Avinash Verma who has conducted demarcation
has been examined as PW-5. He has not supported the
case of the plaintiffs in his report. He has made

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statement as per report stating that statement of
plaintiff No.2-Jyoti Prakash as well as the
defendant's statement regarding the area of land sold

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and purchased and the extent of which land is in

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possession, the actual position could not be
ascertained. The said witness has further deposed
against the plaintiffs stating that Maheshram and
Ramashankar are in possession of excess area to which
they have purchased. The aforesaid fact of being
possession of more than the area purchased has also
been admitted by Maheshram (PW-4). Maheshram (PW-4)

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has stated in his cross-examination that he is in
possession of more than the purchased area of the
land, as such, the trial Court recorded a finding that
the fact of encroachment has not been established vide
Ex.P-1 and two other persons namely Maheshram and

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Ramashankar are admittedly in possession of more than
the area which they have purchased. The trial Court
further recorded a finding that the extent of
encroachment can be proved only by demarcation report
and oral evidence is secondary and came to the
specific finding that the plaintiffs have failed to
prove the fact of encroachment and accordingly
dismissed the suit, which has been reversed by the
first appellate Court relying upon oral evidence.

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10. Proof of factum of encroachment has been

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considered by the Bombay High Court in the matter of
Vijay Shende(supra) and it has been held that the

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extent of encroachment is not a matter to be
adjudicated upon oral evidence of any number of
witnesses, who have witnessed the act of encroachment
and it can be done by demarcation in accordance with

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the relevant Land Revenue Code. It was observed as
under:-

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“25. The extent of encroachment, i.e., area,
is not a matter to be adjudicated upon oral
evidence of any number of witnesses, who have
witnessed the act of encroachment.

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26. The witnesses, who may be the persons who
have measured the land allegedly encroached
with reference to public records in relation
to the survey numbers or 'Pot Hissa' survey
numbers on application by parties or under
orders of Court, can certainly prove the fact
of encroachment in terms of length, breadth,
area etc.

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31. The question of encroachment has a direct

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bearing on the boundaries of land, which is
subjected to land revenue and is measured and
marked in the process of public survey on
preparation of Land Records under the
provisions of Maharashtra Land Revenue Code
or law in existence prior thereto, and these
records are public documents.

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32. When the Court had to decide the issue as
to encroachment, proof thereof was/is a
matter governed by Sections 36 and 60 of
Evidence Act. There are the public records
which are relevant u/s 36 of the Indian
Evidence Act. It shall be useful to quote and
refer to Section 36 of the Indian Evidence
Act, which reads as follows:

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36. Relevancy of statements in maps, charts
and plans.—Statements of facts in issue or
relevant facts, made in published maps or
charts generally offered for public sale,
or in maps or plans made under the
authority of the Central Government or any
State Government, as to matters usually
represented or stated in such maps, charts
or plans, are themselves relevant facts.—
Statements of facts in issue or relevant
facts, made in published maps or charts
generally offered for public sale, or in
maps or plans made under the authority of
the Central Government or any State
Government, as to matters usually
represented or stated in such maps, charts
or plans, are themselves relevant facts."

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11. Suit was filed along with demarcation report Ex.P-1. The plaintiffs were quite aware that they have filed a suit for declaration of title with a pleading that defendant No.1 has encroached over the suit land i.e. 2943 sq.ft. In that view of the matter, the plaintiffs ought to have brought a specific evidence of encroachment and if Ex.P-1 was not acceptable to

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them and the fact of encroachment is not correctly
brought out, they could have make appropriate
application during the course of trial for appointment
of Commissioner to prove the fact of encroachment as
per Section 36 read with Section 60 of the Indian
Evidence Act, which has not been done by the
plaintiffs for the reason best to known to them. It is
not the case that it is a small area of land which is
said to be encroached, it is 2943 sq.ft. of land which

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is said to be encroached by defendant No.1 and
according to defendant No.1, he has already
constructed house over the suit land and he is in
possession of the said area. The plaintiffs took
calculated chance to get a decree on the basis of
demarcation report (Ex.P-1), which the trial Court did
not found favour with the plaintiffs.

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12.Now coming to the oral evidence which has been
relied upon by the first appellate Court to grant
decree in favour of the plaintiffs.

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13.True, it is that the first appellate Court has
considered oral evidence of the plaintiffs' witnesses
and came to the conclusion on the basis of

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probabilities that defendant No.1 has encroached upon
the plaintiffs land, but the fact remains that there
must be appropriate legal evidence in the shape of

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demarcation report to prove the fact of demarcation
that too area of 2943 sq.ft. and that is correct
approach of adjudicating the dispute particularly
while granting decree for possession. Merely on the
basis of probabilities particularly when the
plaintiffs witness Avinash Verma (PW-5) has clearly
stated that purchasers-Maheshram and Ramashankar both
are in possession of excess area which they have
purchased. Unless there is concrete evidence of

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clinching nature that defendant No.1 has definitely
encroached upon the plaintiffs' land, merely on the
basis of probabilities and merely on the basis of oral

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evidence when documentary evidence i.e. demarcation
report (Ex.P-1) is not supporting the oral evidence of
encroachment, decree for possession holding that
defendant No.1 has encroached upon the plaintiffs'

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land could not have been granted by the first
appellate Court, as such, finding recorded by the
first appellate Court that defendant No.1 has
encroached upon the plaintiffs' suit land to the
extent of 2943 sq.ft. is finding, which is perverse to

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record and it is not supported by documentary
evidence. In absence of documentary evidence, merely
on the basis of unacceptable oral evidence, decree
granted deserves to be set aside.

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14. For the foregoing reasons, the impugned judgment and decree passed by the first appellate Court is hereby set aside and that of the trial Court is hereby restored by answering the substantial questions of law in favour of defendant No.1 and against the plaintiffs.

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15. The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).

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16. Appellate decree be drawn-up accordingly.

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 Sd/-

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 (Sanjay K.Agrawal)
 Judge

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B/-

Ashok Sharma v. Smt. Phoolmani @ Phoolmati and Ors.

Case brief

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Ashok Sharma v. Smt. Phoolmani @ Phoolmati and Ors.

Case brief

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