lN THE HIGH COURT OF CHHATTISGAR AT BILASPUR .5” SECOND APPEAL NO 42004 / MEMO OF SECOND APPEAL UNDER SECTION 100 OF THE CODE OF ClVlL PROCEDURE. ”‘3: u APELLANTI /Madhaw Prasad @ Nankun Halwai §/ DEFENDANT Slo Ramlal, aged 32 years, Resident of behind Jute Mill Police Station, Banjin Paii, Tehsil and District-Raigarh (6.6.) V R Versus RESPONDENT] LAINTIFF Smt. Ratan Kunwar Wlo Durga, aged / about 50 years, caste-Sawra, Resident of behind Jute Mill Police Station, Banjin Pali, Tehsil and District-Raigarh (C.G.) HGH wLRT OF G—‘HATHSGARH BILWLR Single Bench:- Hon’ble gm Justice Dhirendra Miahra $econd Appeal Nn.513 of 2004 AwEIlanf :- MadhawPrasad @ Nankun Hakmi a Vs Reslpondent :- srrt. Ratan Kunwar 4 V- Shri H.S.Patel, learned counsel for the appeliant. ‘ J U D G E M E N T (Delivered on >2 >702I2m§ The appellant has preferred this second civii appeal under Section 100 of Code of Civil Procedure against the judgement and decree as the suit of the plaintiffirespondent r has been decreed by the trial Court and the appellant/defendant has been directed to_give the passessian of the suit property to the respondentiplaintiff and the judgment of the trial Court has been subsequently confirmed by the lmpugned judgement passed by the learned hrst Appellate Court. {Parties hereinafter shall be referred. to as per their description in the trial Court.) The plaintiff filed a suit for possession of the euit property described in the schedule appended with the plaint and for damages at the rate of Rslim- per day from the date of nling of the suit on the following averments that she is the owner of the suit property and was residing in the suit house with her husband who wae working in the Jute Mill. However, after the closure of the Mitt; her husband shifted to Calcutta for livelihood and she also joined her husband in Ootober,1999. The defendant who was the neighbour of the plaintiff, taking advantage of absence of the plaintiff, encroached upon her house On return from Calcutta in December, 1999, they learnt about the encroachment but however, the defendant refused to remove the encroachment and started quarrellng. Then, the plaintiff preferred an application for demarcation before the Revenue inspector and the report was submitted before the Tehslldar, Raigarh and as per order of Tehsildar, Revenue inspector (diversion) conducted the / L/g) to demarcation of the suit property in the presence 0f bath the parties and on demércation, it was found that the defendant has encroached upon 251 square feet 50f the land. After demarcation, the defendant encroached unon the wheie land {and disposeessed the plaintiff, Whereupon the suit wae tiled. i The defendant in his written statement denied the claim 0f the plaintiff and stated that the suit property is the property of Jai Ram and in the said property, the name of mother of the plaintiff Hawa Sidarinbai was recorded as Moun'si Hague and the above land was subsequently recorded in the name of plaintiff x. and :her sister after the death of her mother in the Land Revenue Records (Diversion), Raigarh. The land in question admeasuring 780 square feet, is a joint property of plaintiff and her sister. However, the real owner of the property is Jai Ram. lt is further pleaded that out of 780 square feet ofthe disputed land 588 square feet belongs to Ratnabai which the defendant purchased for a consideration of Rs.‘15,000l— vide sale agreement dated 01121999 and since then he is in possession of the suit land and looking after the same. it was also objected to that since Ratnabai is also the owner of the suit property, the suit is liable for dismissal as for non-joinder of necessary parties, Ratnabai and Jai Ram and the suit is barredby Section 65 of the Limitation Act. That the suit was decreed by the learned trial Court in te following terms; h That the plaintiff is entitled to recover possessionsof the suit property situated in Banjinpali Jute Mill, Ralgarh as the defendant is in illegal possession of the same and the defendant shall hand over the vacant possession of the suit property to the plaintiff. The finding of the trial Court was that the plaintiff is the owner of the suit property admeasuring 436 square ‘feet upon which the defendant has itlegally encroached. However, the plaintiff is not entitled for damages and the suit is not liable for dismissal for non-joinder of parties and the suit is not barred by law of limitation. On appeal by the defendant, learned first Appellate Court dismissed the appeal and confirmed the judgment of the trial Court by recording a finding that the suit has been tiled by the plaintiff on the averment that she is the recorded owner of the suit property and on the 'basis of the pleading in written statement by the defendant, both the Courts below have arrived to the conclusion that on the suit property the plaintiff and her sister each had 4/2 share and the fact that the defendant has admitted that he purchaaed 1/2 portian of Ratanbai for a consideration of Rs. 15,0001— vide document of ExDH. Thus, on the pleading$ of th§e parties and on the basis of material available on records, learned Courts below have recorded a finding that the plaintiff had 1/2 share and was in possession of the suit land and the house constructed over the suit land has been? subsequently encroached lay the defendant. Learned Courts below have also irecorded a finding on the basis of demarcation report and documents of annekures PM ,Pi2 and Pl3 that the demarcation of the suit land was held in the presence of defendant on 27.03.2000 and accordingly the demarcation report was given on 03.04.2000 and,by which it has been found that defendant had encroached upon 251 square feet of land and he has signed the demarcation report and put the date of 27.03.2000 on it under her signature. On the basis of this evidence, it has been held that the defendant has encroached upon the suit land cf the plaintiff and the contention of the defendant that he was not present at the time of demarcation. has been disbelieved by both the Courts below. At this juncture, it would be worthwhile to mention that the defendant has moved an application under Order 41 Rule 27 of C.P.C. and has tiied a document being the. demarcation report dated 11032005 prepared by the Revenue inspector. Learned counsel for the appeilantfdefendant submits that he appiied for demarcation of the plot Nos.67/2,68i2 area 7’04 square feet recorded in his name and on his application the demarcation was held on 11.02.2005 in the presence of inhabitants of locality and by this report, the defendant has not been found in any encroachment of any other person and he prays for taking this document on record as it is material for adtudication of the present appeai. e Heard on l.A.No.516l2005. From perusal of the documents annexed with this application, it appears that before holding demarcation the plaintiff has not been noticed and the demarcation has been conducted in the absence of the plaintiff. There is no explanation in the instant application for delay in applying for demarcation as this exercise could have been done during the trial of the suit by the defendant and the same could be proved by him at the time oftrial. In the aforesaid circumstances, the'above application tiled under Order 41 Rule 27 of C.P.C. deserves to be dismissed and it is accordingiy dismissed. Learned counsel for the defendant has assailed the concurrent findings of both fhe Courts beiow on the ground that the plaintiff is not the owner 0f the guit property and the iearned Courts below aught t0 have dismissed the suit fur nun- joinder of parties Jai Ram & ethers and Ratnabai. It is further submitted that the piaintit‘f has not establiahed that she is the owner of the prdperty in queotion and therefore, the suit for possession could not be decreed on the basis of the possession of the plaintiff. ‘ However, both the Courts betow have arrived to the conciusion of the concurrent findings on the basis of the pieadings of the respective parties that the piaintiff and her sister Ratnabai was joint owners of the suit property and further on the hasis of the demarcation report held in the presence of the defendant that he has encroached upon the suit property and accordingly, decreed the suit for possession and all these facts are concurrent findings of facts. The claim of the defendant‘that he purchased the share of plainttffs sister Ratnabai by paying Rs. 15,0001- has also‘been rejected on cogent reasons on the ground that the document of Ex.Df1 is an agreement by which the defendant has purchased the superstructure of the house and on the admission of the defendant that he is in possession of the share of Ratnabai, it has been held that the defendant has encroached upon the joint property of the plaintiff and her sister Ratnabai. On the basis of the above analysis, the learned Appellate Court by the impugned order has arrived to the conclusion that on the disputed land and the house, the plaintiff had “/2 share in which the defendant has illegally, encroached and accordingly confirmed the decree passed by the learned trial Court. The suit has been rightly held to be filed within limitation on the ground that it is aiteged by the plaintiff that encroachment was done in the year 1989 and the same was established by demarcation on 09.04.2000 and the suit was‘filed on 09.11.2000, within prescribed period of limitation. Thus, on the basis of the above analysis, l am of the opinion that there is no substantial question of law’involved for adjudication of the present second appeai and the appeal has to be dismissed and it is accordingty dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. With the aforesaid observations, M.C.P.o.1524i04 N stands disposed of. Sd/ DmENDRA MISHRA W Judge