Dismissed

State Of Chhattisgarh v. Mahadev And Ors.

Chhattisgarh HC4 Nov 2024FA/78/2013

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by the State challenging a decree in a private suit for removal of illegal encroachment. The court held that the plaintiff was the individual owner of the land via a registered sale deed, and thus the jurisdiction clause regarding public lands did not apply.

What did the court decide?

The appeal filed by the State was dismissed; the decree in favor of the plaintiff stands affirmed.

State Of Chhattisgarh Vs Mahadev And Ors. — Property and Title | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SATISH TUMANE

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F.A No.78 of 2013

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Reserved on 21.10.2024 Pronounced on 05.11.2024

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State Of Chhattisgarh Through the Executive Engineer, Public Works Department (Building and Road), Raipur, Chhattisgarh

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---- Appellant

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Versus

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Digitally signed by SATISH TUMANE

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Mahadev, S/o Chain Singh Lodhi Aged About 62 Years Dead, R/o Lodhipara, Raipur, Tahsil and District Raipur (CG) Through his legal representatives -

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Smt. Yashoda Devi Janghel, age about 58 years, R/o Ajay Bhawan, Station Road, Lodhipara, Raipur C.G.

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Bhojraj Janghel S/o Late Mahadev Lodhi (Janghel) Aged About 36 Years R/o Ajay Bhawan, Station Road, Lodhipara, Raipur C.G.

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Sanjay Kumar Janghel S/o Aged About 33 Years R/o Ajay Bhawan, Station Road, Lodhipara, Raipur C.G.

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Ajay Kumar Janghel S/o Aged About 30 Years R/o Ajay Bhawan, Station Road, Lodhipara, Raipur C.G.

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Dayashankar Janghel S/o Late Mahadev Lodhi (Janghel) Aged About 24 Years R/o Ajay Bhawan, Station Road, Lodhipara, Raipur C.G.

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Ku. Kameshwari D/o Late Mahadev Lodhi (Janghel) Aged About 21 Years R/o Ajay Bhawan, Station Road, Lodhipara, Raipur C.G.

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Smt. Pushpa Verma D/o Late Mahadev Lodhi (Janghel) Aged About 28 Years W/o Jeevanlal Verma, R/o Village And Post Padpodi, Distt. Durg C.G.

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Smt. Nageshwari Verma D/o Late Mahadev Lodhi (Janghel) Aged About 26 Years W/o Lalit Kumar Verma, R/o Singouri, P.S. Atariya, Distt. Durg C.G.

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------Respondents

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Present:- For Appellant/State : Shri Dilman Rati Minj, Government Advocate. For Respondents : Shri Anurag Verma, Advocate.

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Single Bench:Hon'ble Shri Sanjay S. Agrawal, J

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C A V Judgment

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This Appeal has been preferred by the Defendant/State under Section 96 of the Code of Civil Procedure, 1908 (for short 'the CPC'), questioning the legality and propriety of the judgment and decree dated 17.07.2012 passed in Civil Suit No.48-A/2011, whereby the trial Court has decreed the Plaintiff's claim. The parties to this Appeal shall be referred hereinafter as per their description before the Court below.

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Briefly stated, the facts of the case are that the Plaintiff Mahadev (since deceased now represented by his legal representatives, namely, Smt Yashoda Devi and others), instituted a suit claiming removal of encroachment, damages and injunction in a mandatory form, submitting, inter alia, that he is the owner of the land in question bearing Khasra No.194/3, Plot No.1/1 admeasuring 4,650 sq. ft. and Khasra No.194/13, Plot No.2/1 admeasuring 3,720 sq. ft situated at village Pandritarai, Tahsil and District Raipur, which has been encroached illegally by the State Government through the Executive Engineer, Public Works Department, Raipur in the month of September, 1973, who constructed a road thereon known as 'Shankar Nagar Road' even without acquiring the same. According to the Plaintiff, it was his diverted land and was duly demarcated by the Officer on Special Duty, Land Diversion Department, Raipur and according to the demarcation report dated 04.09.2002, the alleged road was found to be constructed illegally. It is pleaded further that after construction of the alleged road, a proceeding for land acquisition was initiated by the State Government through its Executive Engineer, Public Works Department in the year 1976-77 and in the said proceeding, the Plaintiff had filed an application seeking the amount of compensation of his land, which is illegally obtained and road was constructed by the

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Defendant authority. It is pleaded further that despite of his said application, no action was taken and subsequently, the said acquisition proceeding was dropped and the Plaintiff is, therefore, entitled to get his vacant possession of land in such circumstances and, if the Defendant is unable to restore the suit land to its original position, then the Plaintiff is entitled to obtain damages at the rate of Rs.1/- per 100 sq.ft per month with effect from September, 1973 till the delivery of its vacant possession, which was caused to him due to illegal act of the Defendant and in the event of its failure, the Plaintiff would be entitled alternatively to any land adjacent to the main road and claimed further the damages to the tune of Rs.3,156.84 for three years preceding the date of institution of the suit dated 25.11.1983.

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While, denying the Plaintiff's ownership with regard to the property in question, it is pleaded by the Defendant that whosoever is the owner of it, has dedicated the same to the public in general for its use as a ‘public path’ with an unequivocal intention to dedicate and the continuous uninterrupted land user of the land in question by the public in general, as a road, as a public way, has received irresistible inference of its dedication. It is contended further that the dispute of the Plaintiff with regard to the land in question against the State Government can be heard and decided only by the Sub Divisional Officer and not by the Civil Court, as provided under Section 57(2) of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as 'the Code of 1959') and, therefore, the suit as framed and instituted is barred by jurisdiction under the said provision and the claim is liable to be dismissed.

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After considering the evidence led by the parties, the suit was earlier dismissed by the trial Court vide its judgment and decree dated 13.11.1998 holding it to be barred by time, but was reversed and the matter was remanded by this Court vide order dated 07.08.2008 in Appeal, being F.A No.84/1999, preferred by the Plaintiff. Upon remand, the Plaintiff has examined one of its witness, namely, Sanjay Janghel, while the Defendant has failed to lead any evidence in rebuttal.

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The trial Court, after considering the evidence led by the Plaintiff, arrived at a conclusion that the Plaintiff-Mahadev Prasad was the owner of the property in question, as it was purchased by him through the guardian/father from one Seth Jaskaran Das and it was his own property, therefore, the suit cannot be held to be barred by jurisdiction under subsection (2) of Section 57 of the Code of 1959 as alleged by the Defendant. In consequence, the Plaintiff's claim has been decreed by the Court below, which has been impugned by way of preferring this Appeal.

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Learned Counsel appearing for the Appellant/State submits that the finding of the Court below holding that the Plaintiff was the owner of the property in question, is apparently contrary to law. It is contended further that the suit as framed is barred by jurisdiction under Section 57(2) of the Code of 1959 and the trial Court has, therefore, committed an illegality in decreeing the same.

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On the other hand, learned Counsel appearing for the Respondent/Plaintiff has supported the impugned judgment and decree as passed by the trial Court.

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I have heard learned Counsel for the parties and perused the entire record carefully.

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The main question, which arises for determination in this Appeal, is as to whether the Court below was justified in decreeing the Plaintiff's claim by holding that his claim is not barred by jurisdiction under Section 57(2) of the Code of 1959.

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From perusal of the record, it appears that the Plaintiff Mahadev Prasad had purchased the suit property i.e. the part of Khasra No.194 and 195 admeasuring 155 sq.ft multiplied by 54 feet = 8,370 sq.ft situated at village Pandritarai, Tahsil and District Raipur through his guardian/father from one Seth Jaskaran Das under the registered deed of sale dated 21.02.1958 (Ex.P-1) for a consideration of Rs.2,746/- and was put in possession thereof. His name was accordingly mutated as evidenced by Khasra Panchsala (Ex.P-4) and Kistbandi Khatauni (Ex.P-5) and was found to be duly diverted by the competent authority. It appears further that on 31.07.2012, the Plaintiff had moved an application (Ex.P-13) before the Officer on Special Duty, Land Diversion Department, Raipur, seeking demarcation of his land and the case was registered as Case No.34-A/12/2001-02. In the said proceedings and as per the direction of the said authority, a demarcation report (Ex.P-16) was submitted on 04.09.2002 wherein, it was found that the Defendant has constructed a road on it’s diverted land. The alleged report was duly established by the Plaintiff's witness, namely, Sanjay Janghel and, which could not found to be rebutted by the Defendant. The alleged land of the Plaintiff was unauthorizedly used by the Defendant for construction of the alleged road

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even without acquiring the same. It appears further that although the proceeding registered as Case No.76/A-82/1989-90 was initiated for its acquisition by the Land Acquisition Officer on 16.11.1976 (Ex.P-7) and the application dated 19.01.1977 (Ex.P-8) was also made by the Plaintiff seeking amount of compensation with regard to the entire alleged land, but the said proceeding was subsequently, dropped vide order dated 04.11.1992 (Ex.P-12) based upon the instruction issued by the Collector on 28.10.1992. It, thus, appears that the alleged suit land owned by the Plaintiff was utilized unauthorizedly by the Defendant through the Executive Engineer, Public Works Department for construction of the alleged road known as “Shankar Nagar Road” and was found to be constructed in the month of September, 1973. The trial Court has, therefore, not committed any illegality in arriving at a conclusion that the Plaintiff's alleged land was used even without its acquisition for construction of the alleged road.

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In so far as the contention of the Appellant/Defendant that the suit as framed is barred by jurisdiction under Section 57(2) of the Code of 1959, is concerned, the same is, however, noted to be rejected as the property in question was duly acquired by the Plaintiff under the registered deed of sale dated 21.02.1958 (Ex.P-1) and was, thus, found to be his individual land. That apart, if there would have been any dispute as alleged by the Defendant, the alleged acquisition proceeding with regard to Khasra No.194, including the Plaintiff's alleged land would not have been issued. Thus, in view of the aforesaid background, I do not find any kind of dispute as alleged by the Defendant so as to hold that the Plaintiff's claim is barred by jurisdiction under sub-section (2) of Section 57 of the Code of 1959.

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12. Consequently, the Appeal being devoid of merit is dismissed. No order as to costs.

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A decree be drawn accordingly.

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SD/(Sanjay S. Agrawal) JUDGE

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Tumane

State Of Chhattisgarh v. Mahadev And Ors.

Case brief

What is this about?

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State Of Chhattisgarh v. Mahadev And Ors.

Case brief

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What did the court decide?

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