Manikram (Died) through Legal Heirs Vs Raman Lal (Died)

This Second Appeal is preferred against the judgment and decree dated 14.11.2006 passed in Civil Appeal No.16A/2006 by the Additional District Judge, Gariyaband, afÏrming the judgment and decree dated 1.5.2002 passed in Civil Suit No.72A/01 by the Civil Judge Class-II, Gariyaband, wh ereby, the suit preferred by the appellant/plaintiff, was dismissed .

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Necessary facts for adjudication of the case are that the appellant/plaintiff has filed a Civil Suit on 26.4.1995 for possession and damages making averments inter alia that he has purchased the subject property- Khasra No.45/4 by way of a registered sale-deed dated 4.2.1987 through Sona Bai and Ramadhin R/o Village Amaldih. It has been averred that the land of defendant No.1 Raman Lal (since

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deceased) is situated in the south direction of the said land and the defendant/respondent No.1 had encroached upon the said land by encircling it with fencing on 14.1.1994. When the appellant/plaintiff protested the same, he started fighting with him and thereafter also encroached upon the said land. Therefore, the appellant/plaintiff preferred an application before the Tehsildar, Gariyaband on 15.3.1995 for demarcation. In the Demarcation Report-Ex.P/4, it has been reported that defendant No.1 - Ramanlal has made a passage and encroached upon the subject property and also started to build up a concrete wall. On this, the appellant/plaintiff has preferred an application under Section 250 of the CG Land Revenue Code (in short “the Code”) before the Tehsildar, Gariyaband and the same was dismissed. Thereafter, the present suit was filed claiming possession and also for the damages on account of loss of paddy to the tune of Rs. 300/- per year. The defendant in his written statement denied the plaint allegations making specific averments therein that he has purchased the subject property - Khasra No.45/1 along with other Khasra Numbers by way of a registered sale-deed dated 21.2.1969Ex.-D/1 through Shyamlal Verma. After the said purchase, he was in possession through cultivation on the subject land and also built a house over it. It has been further averred that he has been in peaceful possession of the said land since a long period. It has been averred that no notice has been served about the demarcation to him. It has also been averred that in the year 1973, he had also purchased some land adjoining to the said land bearing Khasra No.34/1 area 0.162 acres in the name of his minor sons Yogeshwar and Sant Sharan. In the proceeding under Section 250 of the Code, it has also been

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found that the the defendant was in long term possession of the said land. Further, the suit was not filed within limitation and the defendant also perfected the title on the basis of adverse possession.

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The trial Court, based upon the aforesaid pleadings, framed as many as 6 issues. The appellant/plaintiff examined himself as PW-1, Gendu Ram as PW-2, Manohar as PW-3 and and Revenue Inspector - Monda Das as PW-4 and exhibited four documents Ex.P/1-Map , Ex.-P/2 Khasra Panchshala, Ex.P/3 – Field Book , Ex.P/4-Demarcation Report , Ex.P/5-Map and Ex.P/6-Panchnama. Defendant No.1-Ramanlal examined himself as DW-1 and Kejuram as DW-2 and exhibited saledeed as Ex.D/1. After evaluating the evidence, the trial Court reached to the conclusion that there is serious infirmities in the Demarcation Report, hence, the plaintiff could not establish his case. On the plea of adverse possession, the trial Court also reached to the conclusion that as defendant No.1 is not clear on which Khasra Number (land), he is in possession, therefore, the plea of adverse possession has also not been established. However, the plaint was dismissed, against which, the appellant/plaintiff preferred a First Appeal. Learned First Appellate Court found that the suit was not filed within the limitation of 12 years, therefore, the suit is time barred. On the contrary, it has been established that defendant No.1 had been in possession of the subject land for more than thirty years, therefore, he had perfected the title on the basis of adverse possession. Consequently, the appeal was dismissed and the decree passed by the trial Court was afÏrmed. Hence, this appeal.

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Learned counsel for the appellant would submit that the Appellate Court has wrongly reached to the conclusion that defendant No.1 had

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perfected the title on the basis of adverse possession. He would submit that only on the basis of long possession i.e. for a period of more than 12 years, without intention to possess the suit land adversely to the title of the plaintiff, when there is no animus possidendi, right of adverse possession could not be established. For the above submission, learned counsel would place reliance on the matter of Deva (Dead) Through LRs. Vs. Sajjan Kumar (Dead) By LRs, (2003) 7 SCC 481 . He would further submit that when the trial Court has reached to the finding that no proper demarcation has been carried out, in such circumstances, it was the duty of the Court to call for a fresh demarcation report and decide the lis on merits. He fairly admits that there is certain infirmities in the Demarcation Report as the Commissioner -Monda Das (PW-4) failed to explain that defendant No.1 has encroached the land of the plaintiff and further, no notice has been annexed, whereby, it can be revealed that prior to demarcation, any notice has been sent to defendant No.1, who is the interested party of such demarcation. Lastly, learned counsel for the appellant would submit that the ends of justice would be served, if the matter is remitted to the trial Court to decide the matter afresh after obtaining a fresh Demarcation Report.

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Heard learned counsel for the parties and also perused the record with utmost circumspection.

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This second appeal was admitted for hearing on the following substantial questions of law :

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“1. Whether finding of the lower appellate Court holding that defendant Raman Lal is in possession of the plaintiff's suit land based upon the demarcation report (Ex.P.4) made in absence of

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him (defendant) and contrary to the provisions prescribed under Section 129 of the Chhattisgarh Land Revenue Code, 1959, is perverse?

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Whether finding of the lower appellate Court holding that the suit as framed is barred by time and the defendant Raman Lal has prescribed his right, title or interest by way of adverse possession, is perverse?”

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Defendant No.1-Raman Lal categorically deposed that he had been in possession of the land which was purchased by him and he nowhere pleaded that the hostile possession was in the knowledge of the predecessor of the title holder of the suit land.

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It is well settled that mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the true owner and to the latter’s knowledge cannot result in acquisition of title by prescription. The period of limitation can be said to have been started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment – on the plaintiff’s survey number. Though a suggestion has been put to the Revenue Inspector – Monda Das (PW-4) that defendant No.1 is not in possession of the plaintiff’s land, but the said suggestion was denied by the said witness. Thus, it is explicit that even defendant No.1 was also not aware about his boundaries. The trial Court assigned various reasons for not accepting the Demarcation Report. However, the Appellate Court, without adverting to the same, relied on such Demarcation Report. Commissioner/ Revenue Inspector- Monda Das (PW-4) admitted the fact that in the Demarcation Report-Ex/P/4,

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there is no signature of the sons of defendant No.1- Raman Lal and furthermore, on record, it has not been proved as to whether any notice has been served on defendant No. 1 prior to such demarcation. In the map also, there is no mention about the fact that defendant No.1 Raman Lal had encroached upon which land of the plaintiff. He further admitted that at the time of demarcation, the original map was not available as defendant No.1 had also purchased the land bearing Khasra No.45/1 by way of the registered sale-deed on 21.2.1969. Therefore, at the time of said demarcation, it was the duty of the Commissioner to clearly state as to where such land is situated after Batankan of revenue map for the reason that the plaintiff has purchased the subject property subsequent to purchase of defendant No.1 and his land was allotted as Khasra No. 45/4. In view of the above, in my opinion, after proper Batankan of the map, a fresh demarcation is necessary for proper identitification of the land.

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In the matter of Shreepat v. Rajendra Prasad & Others { JT 2000

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(7) SC 379} equivalent to MANU/SC/3249/2000 , the following was observed in para 4 :

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"4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below..…"

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As a consequence of the aforesaid discussion, on the ground of facts of the case, and in view of the legal precedent cited above, this Court answers both the substantial questions of law as determined and pondered above.

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Accordingly, the matter is remitted to the trial Court with a direction to hear the same afresh on receipt of a fresh Demarcation Report after Batankan of the map in respect of the land of the plaintiff bearing Khasra No.45/4 and the land of the defendant No.1 bearing Khasra No.45/1. The trial Court is directed to obtain a fresh Demarcation Report from the revenue authorities and decide the matter afresh keeping in view the observations made above strictly in accordance with law.

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Consequently, both the impugned orders are set-aside. Let the parties appear before the concerned Court on 10.2.2025.

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Since the respondent/defendant No1, who is now represented by his legal representatives, did not made their appearance, the trial Court is directed to firstly issue notice to them before proceeding in the matter in accordance with law.

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14.With the aforesaid observations/directions, the Appeal is disposed of.

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The record of the case be sent back by the Registry forthwith to the Court concerned so as to reach there before the date of appearance of the parties.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Shyna

Manikram (Died) through Legal Heirs v. Raman Lal (Died)

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Manikram (Died) through Legal Heirs v. Raman Lal (Died)

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