Shridhar Chandrakar Vs Chhabilal Dewar and Anr.

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2025:CGHC:48685

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 71 of 2013

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Judgment Reserved on 04.07.2025 Judgment Delivered on 23.09.2025

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Shridhar Chandrakar S/o Late Manharan Lal Chandrakar Aged About 45 Years R/o Old Basti, Mahasamund, P.S. Mahasamund, Tah. And Distt. Mahasamund C.G., Chhattisgarh

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... Appellant(s)

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versus

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1.Chhabilal Dewar And Anr S/o Ravi Dewar Aged About 40 Years R/o Nayapara Near Garden Ravidas, Mahasamund, Tah. And Distt. Mahasamund C.G., Chhattisgarh

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2.State of Chhttisgarh Thru- The Collector, Mahasamund, Distt. Mahasamund C.G., District : Mahasamund, Chhattisgarh

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... Respondent(s)

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For Appellant (s)	:	Mr. Vivek Tripathi, Advocate
For Respondent No.1	:	Mr. Keshav Dewangan, Advocate
For the Respondent No.2.	:	Mr. Kalpesh Ruparel, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas

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CAV Judgment

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This Second Appeal under Section 100 of Civil Procedure Code, has been filed

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by the defendants against the judgment and decree dated 21.11.2012 passed by 2^nd Additional District Judge, Mahasamund District Mahasamund in Civil

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Digitally signed by SANTOSH SANTOSH KUMAR KUMAR SHARMA SHARMA Date: 2025.09.23 15:49:58 +0530

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Appeal No. 34-A/2012 affirming the judgment and decree dated 11.03.2010 passed by 1^st Civil Judge Class-I Mahasamund District Mahasamund in Civil Suit No. 55-A /2009.

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For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 55-A /2009 before the trial Court.

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This appeal was admitted by this Court on the following substantial question of law on 24.11.2021;-

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“Whether the finding recorded by the trial Court as affirmed by the First Appellate Court that the disputed land was not demarcated as khasra No. 91/5/1 and 915/2 is perverse or contrary to the records and the trial Court was justified in dismissing the suit.

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The necessary facts for disposal of the present appeal, in short are that the plaintiff has filed the suit for injunction mainly contending that he is the joint owner of total 22.00 acres of land situated at village Kenekera, Jhal Khamhariya which was recorded in the joint account of his mother Gangabai and brother Sachidanand. It is contended that the land bearing khasra No. 915/1 area 0.280 hectare and khasra No. 915/2 area 0.279 hectare total area 0.559 hectare were recorded in his separate account out of which the land situated at Patwari Halka No. 142/89 area 0.11 acres/ 4785 sq. feet was forcibly encroached by defendant No.1 and constructed house and boundary wall upon it in February 2006. The plaintiff tried to stop him but he continued with the construction work, thereafter, the appellant made an application for demarcation before Tahsildar, Mahasamund on 08.07.2006, after receiving the demarcation report, the plaintiff on 12.07.2008 sent a legal notice to defendant No.1 through his counsel to remove the encroachment constructed upon the

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land but the defendant No.1 did not stop illegal construction which necessitated the plaintiff to file a suit.

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Defendant No.1 filed his written statement denying the allegation made in the plaint contending that he purchased khasra No. 925 area 0.009 hectare from Bisahuha S/o. Gokul Sahu and since then he is in possession of the suit land and he has not encroached land belonging to the plaintiff. It is also contended that the plaintiff never got demarcated the land and whatever action taken by him is illegal as it has been done in his absence which is adversely affecting title of his suit property and would pray for dismissal of the suit.

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On the pleading of the parties, learned trial Court has framed as many as five issues. Issue no 1,2 and 4 are relevant therefore, they are extracted below:-

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^^1- D;k egkleqUn i0g0ua0 142@89 fLFkr Hkwfe [kljk uEcj 915@1] 915@2 jdck Øe’k% 0-280 gs0 rFkk 0-279 gs0 Hkwfe ds jdck 0-11 ,dM+ ¼4785 oxZ QwV½ ¼oknxzLrHkwfe½ izfroknh Øekad&01 us tcju dCtk dj edku ,oa ckmUMªh oky dk fuekZ.k fd;k gS\

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2- D;k oknh [kljk uEcj 915@1] 915@2 esa izfroknh Øekad&01 }kjk fd;s x;s fuekZ.k dks rksM+dj [kkyh Hkwfe dk dCtk izkIr djus dk vf/kdkjh gS\

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4- D;k izfroknh Øekad&01 us [kljk uEcj 925 jdck 0-009 gs0 Hkwfe dks fclkSgk firk xksdwy ls Ø; fd;k gS*

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The plaintiff to substantiate his case has examined Jawahar Lal Sharma (PW1), plaintiff himself (PW-2) and exhibited documents demarcation application (Ex.P-1(c), Map (Ex.P-2(c), Map (Ex.P-2(c), khasra (Ex.P-4(c), Panchanama (Ex.P-5(c), B-1 (Ex.P-6), khasra No. (Ex.P-7), legal notice (Ex.P-8). Defendant No. 1 to substantiate his claim has examined Kanti Bai (DW-1) and exhibited document sale deed Ex.D1(c).

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Revenue Inspector Jawahar Lal Sharma (PW-1) was examined before the Court wherein he has admitted that as per order of Tahsildar, he has prepared demarcation report (Ex.P-1). He has stated that Bhagirathi S/o. Ramanand

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has constructed house and boundary wall about 66 decimal and Chhabilal has constructed house and temple on about 11 decimal, Mangalu was residing at 3 decimal land and Netram Dewangan is in possession of 300 decimal land. He has also stated that Municipal Corporation has constructed of road and tube well on 11 decimal land of plaintiff. The witness has submitted document demarcation report (Ex.P-1) and photocopy of demarcation report (Ex.-1(c). The witness has not stated anything about the boundary of Khasra No. 915/1 and 915/2 in the demarcation report and has not clarified the boundary. The witness in the cross examination has admitted in the demarcation report that he has not mentioned about intimataton to anyone and cannot give any explation for it. He has also admitted that at the time when the survey/demarcation was done by him Manglu and Chhabilal were not available there at the place of demarcation. He voluntary stated that they have gone to the house but this fact was not mentioned in his panchanama. He has also admitted that before demarcation person who is in possession of the land has to be intimated. He has violentary stated that he has given it. He has also admitted that regarding intimation he has not mentioned in the report as well as panchanama and has not given reason for not mentioning the same.

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The plaintiff (PW-2) in his examination-in-chief by way of affidavit as provided under Order 18 Rule 4 CPC has reiterated the stand taken by him. The witness was cross examined wherein he has admitted that in the demarcation report Ex.P-1(c) if there is no mention about Mangul’s house then he cannot explain it. He has also admitted that in the plaint he has not mentioned about construction of the temple. He has admitted that he cannot say that encroachment has been made in khasra No. 915/1 or 915/2.

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Kanti Bai (DW-1) in her examination-in-chief by way of an affidavit as provided under Order 18 Rule 4 CPC has supported the case of the defendant. In the cross examination, she has stated that in the east side of her house, Chhabilal house and stated that she has purchased the house from Lobhe Ram but no registration of the house has been done. She has also stated that Chhabilal has purchased the house from Bisau and at that time she was present but stated that at the time of registration she has not gone to Registrar Office at the time of measurement of the property she was present there.

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Defendant No.1 in his examination-in-chief by way of affidavit as provided under Order 18 Rule 4 CPC has reiterated the stand taken by him in written statement. The said witnesses was cross examined by the plaintiff wherein he has stated that khasra number of the land purchased by him is 925 and sale deed has been executed for 1000 sq feet. The demarcation was done through the Tahsildar. He has also stated that in the east of his house Kalyan’s house and in west Manglu Kenwat house. He has also stated that against Manglu Kenwat, Shridhar has filed the suit and in north Bhagirathi Bisai’s house and in south Akal Verma’s house which has been purchased from Bisahu Sahu.

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Learned trial Court after appreciating the evidence, material on record has dismissed the suit vide its judgment and decree dated 11.03.2010 by recording its finding that defendant No. 1 submitted copy of the registered sale deed of Ex.D.-01(C), which clearly shows that he purchased the land measuring 0.009 hectares of Khasra No. 925 and the plaintiff was unable to prove that defendant has encroached the land belonging to the plaintiff. Being aggrieved with judgment and decree, the plaintiff has preferred first Appeal before Additional District Judge, Mahasaund who has rejected the appeal filed by the

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appellant. Being aggrieved by the judgment and decree passed by the first Appellate court on 21.11.2016, the plaintiff has filed Second Appeal under Section 100 CPC which has been admitted by this Court on the above stated substantial question of law.

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Learned Counsel for the appellant would submit that the findings recorded by trial Court affirmed by the Appellate Court are perverse and contrary to the record. Learned counsel for the appellant would further submit that rejection of the application of appellants under Order 26 Rule 9 read with Order 41 rule 27 and Section 151 CPC for appointment of a commissioner was unjustified particularly when the dispute between the parties essentially pertaining to boundary demarcation. He would further submit that Appellate court has erred in not relying on demarcation report prepared by Revenue Inspector on the instruction of Tahsildar, as such it is perversity and on the perverse finding the judgment and decree has been passed, therefore, the appeal may be allowed.

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On the other hand learned counsel for the respondents would submit that demarcation report has not been prepared as per law, as such it cannot be held that the Appellate court has committed any illegality in relying the demarcation report would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused record of the Courts below with utmost satisfaction.

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From the evidence brought on record, it is evident that the plaintiff in the cross examination has admitted that in the demarcation report Ex.P-1(c) if there is no mention about Mangul’s house then he cannot explain it. He has also admitted that in the plaint he has not mentioned about construction of the temple. He has admitted that he cannot say that encroachment has been

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made in khasra No. 915/1 or 915/2 whereas the defendant has categorically stated that he has purchased the land bearing khasra No. 925 which is different khasra number from the land in which it has been alleged by the plaintiff that encroachment has been made by the defendant. The record of the case clearly demonstrates that the defendant has also filed copy of the register sale deed Ex.D-1(c) which has presumptive value in view of well settled legal position of law unless rebutted by cogent evidence. The plaintiff has not placed any cogent evidence to rebut truthiness and genuineness of the sale deed.

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The learned trial Court while appreciating the evidence and material on record has recorded its finding that before demarcation land owners who is alleged to have encroached the land should be noticed whereas Jawahar Lal Sharma (PW-1) has categorically admitted in the cross examination that he has not given any notice to the defendant or any documents to substantiate this fact any documents has been filed before the trial Court, as such the finding recorded by the learned trial Court does not suffer from perversity or illegality which warrants interference by this Court.

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Further submission of learned counsel for the plaintiff that since there is dispute about the demarcation of the land, therefore, learned Appellate Court should allow the application under Order 26 Rule 9 CPC as well as order 41 Rule 17 CPC i.e. for appointing Commission for demarcation of the land.

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Since the plaintiff himself is unable to prove which land has been encroached by the defendant No. 1 and the defendant has categorically proved before the Court below that he has purchased the land bearing khara No. 925 which is altogether different land, as such no demarcation is required, therefore,

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learned Appellate rightly rejected the application under Order 26 Rule 9 CPC. Even otherwise it is well settled legal position of law that the plaintiff has to stand on its own footing before the trial Court and Court cannot be sources of collecting evidence on behalf of the plaintiff. Considering this aspect of the matter, I am of the view that the learned First Appellate Court has not committed any illegality in rejecting the application under Order 26 Rule 9 CPC. It is pertinent to mention here that the plaintiff has not filed any document through the application under Order 41 Rule 27 CPC but has merely prayed for appointment of Commissioner and if the application is allowed the report may be taken on record. Since the First Appellate Court has rightly rejected the application under Order 26 Rule 9 CPC, therefore, there is no occasion for the Appellate court to allow the application under Order 41 Rule 27 CPC. The provisions of Order 41 Rule 27 of CPC has recently come up for consideration before the Hon’ble Supreme Court in case of Iqbal Ahmed (dead) by Lrs. & Another vs. Abdul Shukoor reported in 2025 INSC 1027 wherein the Hon’ble Supreme in paragraphs 8 and 9 has held as under:

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“8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar Vs. Nilima Mandal and Anr., AIR 2009 SC 1103 and Union of India Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of

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the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence.

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As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires reconsideration by the High Court. Since we find that the matter requires re-consideration at the hands of the High Court afresh, we have not gone into the aspect of delay in deciding the appeal by the High Court as was urged on behalf of the appellants.”

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In view of the facts and circumstances of the case and law laid down by the

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Hon’ble Supreme Court, the learned First Appellate Court has not committed any illegality or irregularity in rejecting the application filed under Order 26 Rule 9 CPC as well as under Order 41 Rule 27 CPC.

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The finding recorded by both the Courts below that the plaintiff is unable to prove that defendant No.1 has encroached his land, is concurrent finding of fact which does not suffer from perversity or illegality, therefore, substantial question of law framed by this Court is answered against the plaintiff and in favour of defendant No.1. Consequently, the appeal deserves to be dismissed and accordingly it is dismissed.

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(Narendra Kumar Vyas) JUDGE

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santosh

Shridhar Chandrakar v. Chhabilal Dewar and Anr.

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Shridhar Chandrakar v. Chhabilal Dewar and Anr.

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