Bed Prasad Vs Sondha Alias Sunder And Ors.

2. Bhagau S/o Late Kashiram Aged About 50 Years R/o Tingipur, P.O. Khaija, P.S./tah. Baloda, Distt. Janjgir-Champa C.G., Present R/o Khusrupara, Khisora, P.O. Khisora, P.S./tah. Baloda, Distt. JanjgirChampa C.G.

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3. State Of Chhattisgarh through The District Collector, Janjgir-Champa, Janjgir, P.O./ P.S. Janjgir, Distt. Janjgir-Champa C.G.

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... Respondents

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For Appellant : Mr. Somnath Verma, Advocate For Respondent No.1 : Mr. Anish Tiwari, Advocate For State : Ms. Neeta T. Thawani, PL

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Order On Board

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18/03/2025

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1. This Second Appeal has been preferred against the judgment and decree dated 06.05.2013 passed by the Additional District Judge, Janjgir in Civil Appeal No.12A/2012, which, in turn, arises out of the judgment and decree dated 29.04.2010 passed by the 2^nd Civil Judge, Class- I, Janjgir in Civil Suit No.178A/2005.

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2. By the impugned judgment and decree, the First Appellate Court allowed the Appeal and reversed the judgment and decree passed by the trial Court, whereby, the trial Court had decreed the plaintiff’s suit.

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3. It is an admitted fact that Jawahar (DW-2) sold Khasra No.162/1 admeasuring area 0.10 acre by way of two different sale deeds (Ex.P/1 & Ex.P/2 respectively). The Sale deed dated 11.06.1990 (Ex.P/1) is in respect of land admeasuring area 0.080 decimal situated at village Tingipur, Revenue Circle Baloda, Tehsil Janjgir, describing the boundaries as in the East, the purchaser’s land, in the West, the seller’s land, in the North, land of Harprasad and others and in the South, land of Premlal. The second sale-deed dated 18.06.1990 (Ex.P/2) is in respect of land admeasuring area 0.02 decimal, describing the boundaries as in the North, land of Khasiram, father of defendant No.1, in the South, land of Premlal, in the East, the purchaser’s land and in the West, an alley (gali) is there . The plaintiff instituted a Civil Suit on 28.07.2005, making an averment inter alia that the private defendants (sons of

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Kashiram) encroached on some part of the land and started construction over it, therefore, the plaintiff has carried out a demarcation, in which, it has been reported that the defendants encroached upon about 0.7 acres of land, which has been shown in the map annexed with the plaint. In the said map, inadvertently, instead of “Khasra No.162/1” “Khasra No.165/1” has been mentioned. The plaintiff has also filed an application under Section 250 of the CG Land Revenue Code, which was dismissed vide order dated 30.05.2005 (Ex.P/7) by the Nayab Tehsildar, Janjgir, wherein the defendant has made an averment that his house was constructed more than 100 years ago. Against the order passed by the Nayab Tehsildar, an Appeal has been preferred before the SDO. The present Civil Suit has been filed for declaration of title and for demolition of the construction made on the encroached land and for vacant possession.

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4. The defendants, in their written statements, denied the averments of the plaintiff and stated that they have not encroached upon the land of the plaintiff and their house has been constructed more than 100 years ago. It was further stated by them that the Suit is time barred. Thus, they prayed to dismiss the Suit.

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5. On the basis of pleadings of the parties, the trial Court framed as many as 5 issues. In order to prove his case, the plaintiff examined Ramprasad, his cousin and also himself and further proved Ex.P/1 to Ex.P/7. Defendant No.1- Sondharam@Sunder has examined himself as DW-1 and the seller namely Jawahar as DW-2, however, he did not prove any documentary evidence. The learned trial Court after evaluating the

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evidence available on record, reached to the conclusion that the plaintiff has successfully been able to prove that the subject land is in the ownership of the plaintiff and accordingly, the suit was decreed in his favour. Against the said civil suit, the defendants filed a First Appeal. Learned Appellate Court observed that the plaintiff has not been able to prove as to which portion of the land in respect of Khasra No.162/1, has been encroached by the defendant, and thereby, dismissed the suit on the grounds that (i) no demarcation report was proved and (ii) the plaintiff has to prove his case on his own strength and he cannot take advantage of the weakness of the other side. Consequently, the First Appeal was allowed by the First Appellate Court.

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6. It is pertinent to mention here that during the pendency of this Appeal, an application has been filed by the appellant under Order 26 Rule 9 of the CPC for demarcation of the Suit land to resolve the controversy between the parties.

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7. On 05.07.2022, this Second Appeal was admitted for hearing on the following substantial questions of law:-

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“ 1. Whether, the findings given in the appellate judgment regarding the suit is barred by law of limitation; is sustainable, without-disclosing specific contrary date in the written-statement, whereas the plaintiff clearly stated the exact cause of action ?”

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“ 2. Whether, issuance of the Commission for spot inspection would be necessary for right decision of the dispute and for ends of

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justice in the instant case where the title of the plaintiff over Khasra No.162/1 area 0.10 acre was admitted by the defendant?”

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8. Learned counsel for the appellant submits that the defendants have not disputed the title of the appellant/plaintiff and they have only raised a ground that the suit land has not been identified, as demarcation report has not been proved by the plaintiff, which has also been mentioned in the order dated 30.05.2005 (Ex.P/7) passed by the Nayab Tehsildar. He would submit that there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity. For the above submission, learned counsel places reliance on the matter of Shreepat vs. Rajendra Prasad, AIR OnLine 2000 SC 92 and prays to remand the case to the trial Court to dispose of the suit afresh after obtaining the demarcation report.

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9. On the other hand, learned counsel for respondent No.1 opposes the aforesaid submission. He submits that there is a material difference of boundaries in the two sale deeds (Ex.P/1 & Ex.P/2) and the map, which has been annexed with the plaint. He would further submit that no proper cause of action has been described in the plaint and the plaintiff has not been successfully able to prove as to when he was dispossessed. The Nayab Tehsildar has categorically mentioned in his order dated 30.5.2005 (Ex.P/7) that the plaintiff was not dispossessed within 2 years of passing of the said order. He would submit that it is the duty of the plaintiff to state the particulars in terms of Order 7 Rule 1(e) of the CPC i.e. the facts constituting the cause of action and when it arose.

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Therefore, in view of the aforesaid lacuna, the present is not a fit case to remand the matter.

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10. Having heard the submission of learned counsel for the parties and particularly considering that the defendants have taken a specific stand that they had built a house on their own land, however, the plaintiffs have alleged that the defendants have encroached on his part of the land bearing Khasra No. 162/1 admeasuring area 10 decimal, this Court is of the view that there is a serious dispute as to whether the defendants had encroached on any part of the land bearing Khasra No. 162/1 or not and the said dispute can be decided only by issuing a commission to locate the plot in dispute and find out whether it formed part of Khasra No. 162/1 or not, as no demarcation report has been produced during the trial.

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11. In such circumstances, the application filed by the appellant/plaintiff under Order 26 Rule 9 of the CPC is allowed subject to payment of cost of Rs.25,000/-, which shall be paid to the private defendants through their counsel within a period of 30 days from the date of receipt of a copy of this order.

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12. In consequence, the trial Court is directed to restore the Civil suit to its original number. Accordingly, the decree passed by both the Courts below is hereby set aside and the matter is remitted to the trial Court to dispose of the suit afresh in the light of the observations made herein above and in accordance with law after obtaining a fresh demarcation report. The parties shall also be afforded an opportunity to lead further evidence, if they so desire.

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13. Both the parties are directed to appear before the trial Court on 08.04.2025.

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14. Registry is directed to transmit a copy of this order along with the record to the concerned trial Court forthwith.

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15. No order as to cost(s).

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16. A decree be drawn accordingly.

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Sd/-