Jhumuk Lal Sahu Vs Ramnath Sahu

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2024:CGHC:42900

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Digitally signed by REKHA SINGH

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No.435 of 2015

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1 - Jhumuk Lal Sahu S/o Late Shri Mangturam Sahu Aged About 68 Years R/o Village Sakri, Tahsil Kurud, District Dhamtari Chhattisgarh , Chhattisgarh

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2 - Lachhnu Sahu S/o Chhabilal Sahu Aged About 48 Years R/o Village Sakri, Tahsil Kurud, District Dhamtari Chhattisgarh At Present R/o Village Kodebod, Tahsil Kurud, District Dhamtari Chhattisarh , District : Dhamtari, Chhattisgarh

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... Appellants

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versus

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1 - Ramnath Sahu S/o Mangtu Sahu, Kunj Lal Verma Aged About 60 Years R/o Village Sakri, Tahsil Kurud, District Dhamtari Chhattisgarh , Chhattisgarh

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2 - State Of Chhattisgarh State Of Chhattisgarh Through The Collector, Dhamtari, District Dhamtari Chhattisgarh

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	---- Respondents
For Appellants/Defendants No.1 & 2 :	Mr. Somnath Verma, Advocate
For Respondent No.1/Plaintiff :	Mr. D.N. Prajapati, Advocate
For State/Respondent No.2 :	Ms. Soumya Sharma, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey

Order on Board

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05.11.2024

Heard.

This appeal was admitted for hearing vide order dated 03.09.2015 on the following substantial question of law:-

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“Whether the findings of both the Courts below regarding title over the suit land to the plaintiff is perverse ?”

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In the instant second appeal filed under Section 100 of the CPC, defendants No.1 & 2 have challenged the judgment and decree passed by the learned Additional District Judge (FTC), Dhamtari in Civil Appeal No.19-A/2015 dated 13.07.2015, whereby the first appeal preferred by defendants No.1 & 2 was dismissed and the judgment and decree passed by the learned Trial Court was affirmed.

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The plaintiff filed a suit for possession and permanent injunction in relation to Survey No.53/10 admeasuring area of 2.40 acres, new Survey No.182 admeasuring area of 0.85 hectares situated at Village Sakri, Patwari Circle No.12/24, Tehsil Kurud, District Dhamtari interalia on the ground that late Mangturam was the father of the plaintiff and defendant No.1. In the name of Mangturam, a total of 1.69 hectares of land was recorded in the revenue records. After the death of Mangturam, according to the plaint averments, there was a partition between the plaintiff and defendant No.1 in the year 1998 and Survey No.53/10, new Survey No.182 fell in share of the plaintiff but defendant No.1 encroached over 0.40 acre whereas defendant No.2 encroached over 0.10 acre of said land. It is further pleaded that a demarcation was conducted wherein the allegations were found

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proved. The plaintiff further pleaded that an application under Section 250 of the Chhattisgarh Land Revenue Code was moved before the Tehsildar and the same was dismissed. Thereafter, an appeal was preferred against the order passed by the Tehsildar and during its pendency, the civil suit was filed. Thus, the plaintiff claimed recovery of possession and permanent injunction.

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Defendant No.1 filed a written statement and denied the plaint averments. Defendant No.1 pleaded that there was a partition in the year 1991. He pleaded that 0.19 hectares of Survey No.182 fell in his share and he is in possession. He admitted the fact that a demarcation was conducted and his possession was found over 0.40 acre of land. He further pleaded that the application moved by the plaintiff under Section 250 of the Chhattisgarh Land Revenue Code was rejected by the Tehsildar and in an appeal, the Sub-Divisional Officer (Revenue) remitted back the matter. He further pleaded that the plaintiff and defendant No.1 are in possession of their respective share. He also pleaded that he had perfected his right over the suit property by the principle of adverse possession.

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Defendant No.2 filed a written statement and pleaded that there was an oral partition between the plaintiff and defendant No.1 in the year 1991. Defendant No.2 is in possession of 0.10 acre of land out of Survey No.182 and he has perfected his right over the property by the principle of adverse possession.

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Learned Trial Court framed issues. The parties led evidence and the learned Trial Court decreed the suit. Defendants No.1 & 2 preferred an appeal and the same was dismissed.

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Mr. Verma, the learned counsel appearing for defendants No.1&2/appellants would argue that the plaintiff was under an obligation to prove the factum of partition between the plaintiff and defendant No.1. He would further submit that the plaintiff could not prove which survey numbers fell in the share of defendant No.1. He would also submit that the application moved by the plaintiff under Section 250 of the Chhattisgarh Land Revenue Code was rejected by the Tehsildar. He would further contend that the plaintiff has not produced any document to establish that there was a partition by metes and bound therefore, the learned Courts below committed an error of law in decreeing the suit. He would refer to the evidence of the plaintiff, who has admitted the partition between the plaintiff and defendant No.1 but he failed to describe survey numbers and area. He would pray that the judgment and decree passed by the Courts below may be set aside.

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On the other hand, Mr. Prajapati, the learned counsel appearing for respondent No.1/plaintiff would oppose the submissions made by Mr. Verma. He would submit that there is a concurrent finding recorded by the learned Courts below. He would further contend that defendant No.1 himself has admitted that there was a partition between the plaintiff and defendant No.1. He would further submit that a total area of 1.69 hectares was recorded in the name of Mangturam, father of the plaintiff and defendant No.1. He would further contend that there was a partition between the plaintiff and defendant No.1 and they are in possession of their respective share. He would also contend that the plaintiff in his evidence has categorically stated that in the year 1997-1998, the partition was effected in the presence of villagers. He

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would lastly contend that the present appeal deserves to be dismissed.

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Ms. Sharma, the learned Panel Lawyer appearing for the State/respondent No.2, would support the judgments passed by the Courts below.

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10.I have heard the learned counsel appearing for the parties and perused the record.

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11.The encroachment of defendant No.1 was found over an area of 0.40 acre and the encroachment of defendant No.2 was found over an area of 0.10 acre of survey No.182.

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12.Ex.P/5 is the revenue record, which shows that a total of five survey numbers area of 1.69 hectares were entered in the name of Mangturam in the revenue records. Ex. P/5 is the revenue record for the years 2003-2004.

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13.The plaintiff examined himself as PW1 and admitted the fact that there was a partition between him and defendant No.1 in the year 1998.

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14.Keertan Lal (PW2) has stated that there was a demarcation but he stated that defendant No.1 is in possession of the suit property.

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15.Defendant No.1 examined himself as DW1 and admitted the fact that there was a partition in the year 1991. He further admitted that there was a demarcation. He also deposed that he is in possession of 0.19 acres of land of Survey No.182.

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16.Defendant No.2 examined himself as DW3 and admitted the fact that

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a case was filed against him by the plaintiff pertaining to Survey No.182 but he denied the fact of demarcation and partition in the absence of specific knowledge.

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17.Narayan (DW2) admitted the fact that there was a partition between the plaintiff and defendant No.1 and he also admitted the factum of demarcation.

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The plaintiff has categorically stated that he obtained survey No.182 along with other survey numbers in partition, which was done in the years 1997-1998. The fact of partition has been admitted by defendants No.1, and 2 and their witnesses. Therefore, it can safely be held that there was a partition between defendant No.1 and the plaintiff but survey numbers have not been described either by the plaintiff or by the defendants.

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19.There was a demarcation vide Ex.P/3 and the Revenue Officer clearly observed that defendants No.1 & 2 have encroached over survey No.182 up to the extent of 0.40 acre and 0.10 acre, respectively. The demarcation report was never challenged either by defendant No.1 or by defendant No.2 before any superior authority.

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20.Defendant No.2/Lachhnu examined as DW3, in cross-examination admitted the fact that a case was filed by the plaintiff pertaining to Survey No.182 against him, which proves the fact that Survey No.182 was recorded in the name of the plaintiff and he was in possession also.

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