^^^^^^^'^<a^^fi>i,^^^t^:^@^i;&<a^ IN iraiE HIGH COURT OF CHIi^TTISGARfi^m* BH-ASI'UR SBCOND APPEAL N054^ / 2009. siisi APPELLANT/ /'f)EFENDANT .-..-^^^ "^W*--f~,^A.«">* ^"^.^^' VERSUS RESPONDENTS/ BKAINTIFFS ^ 2.) ^Shatrughan Thakur S/o Shri ^- Ganbhir Thakur aged about 64 years, resident of village Basantpur Rajnandgaon Tahsil and Dist. Rajnandgaon (C.G.) Devsingh @ Devisingh Soni S/o Bajirao aged about 28 years. Smt. Fulkunwar Wd/o Late Bajirao, aged about 65 years. Smt. Sheela Agrawal W/o Shri Madhu Singh Agrawal, aged about 50 years Basanti Maitray W/o Shri Sahdev Singh aged about 43 years, all resident of village Basantpur Rajnandgaon Tahsil and District Rajnandgaon (C.G.) JagatRam S/o Shri Namaloom aged about 60 years. Smt. Dugadhi Bai W/o Shri Jagat Ram aged about 50 years, resident of village Basantpur Tahsil and District Rajnandgaon (C.G.) ' SECOND APPEAL UNDER SECTION CIVIL PROCUDURE 1908. O OF THE CODE OF ^, iinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Shatrughan Thakur versus Devsingh @ Devisingh Soni and others Second Appeal No.90 of 2009 Jaaat Ram and another versus @ Devi Singh Soni and others Postfor,to--01-2010 Sd/- prashant Kumar Mishra Judge <1 HIGH COURTOF CHHATTISGARH AT BILASPUR Sinale Bench: Hoh'ble Shri Justice Prashant Kumar Mishra Second Appeal No.54 of 2009 Appellant Respondents versus Shatrughan Thakur Devsingh @ Devisingh Soni and others Present: Shri R.S.Patel, counsel forthe appellant. Shri Anup Majumdar, counsel for respondents No.1 to 4. Shri Vishnu Koshta, counsel for respondents No.5 and 6. Second Appeal under Section 1 00 of the Code of Civil Procedure Second Appeal No.90 of 2009 Respondents versus Jagat Ram and another Dev Singh @ Devi Singh Soni and others Present: Shri Vishnu Koshta, counsel for the appellants. Shri Anup Majumdar, counsel for respondents No.1 to 4. Shri R.S.Patel, counsel for respondent No.5. Second Appeal under Section 100 ofthe Code of Civil Procedure "•"?. ORDER (Passed on ?.<>.<January, 2010) This order shall govern the disposal of Second Appea! No.54/2009 (Shatrughan Thakur versus Devsingh @ Devisingh Soni and others) and Second Appeal No.90/2009 (Jagat Ram and another versus Dev Singh @ Devi Singh Soni and others) arising out of a 1_ ^ ^ ^"^ common judgment and decree dated 23-12-2008 delivered by the District Judge, Rajnandgaon in Civil Appeal N0.26-A/2007 and Civil Appeal N0.27-A/2007, which, in turn, had arisen out of the judgment and decree dated 28-3-2007 delivered by the 2nd Civil Judge Class-!, Rajnandgaon in Civil Suit No.-288-A/2005. 2. The appellants herein were defendants in the suit preferred by one Bajirao (since deceased), the original plaintiff, for declaration of title and recovery of possession over pieces of land measuring 972 Sq.Ft. and 1107 Sq.Ft. bearing Khasra No.18/2as described in Schedule 'A' annexed with the plaint. 3. It was the case of the plaintiffe in the Courts below that the original plaintiff Bajirao was the owner of suit lands bearing Khasra No.18/2 area 8 dismil situated at Basantpur, Rajnandgaon on which the defendants have illegally encroached, which fact came to the knowledge of the piaintiff on 12-4-1990 after a demarcation report. The origina! plaintiff claims to have purchased the pieces of !and on 1 - 3-1984 by a registered sale-deed executed by one Phoolchand Gupta and obtained possession thereof. The plaintiffe made several requests to the defendants for removing their encroachment, however, the defendants refused to remove the encroachment. 4. Defendants No.1 and 2 in. the civil suit filed a joint written sfatement and denied the piaint allegations and averred that the demarcation has not been made in their presence, therefore, the said demarcation is not binding on them and that they have not encroached ^- ~ the lands belonging to the original plaintiff Bajirao. '^ ..^ .w" .-.^S^^. ' •^•^!. cf' '.t° -'i?^ 1 ^ "'^^1 ^»3^' s- •'''"?. 5. The learned trial Court dismissed the suit although the trial Court found in answer to issue No.1 that the original plaintiff Bajirao was the owner of the suit lands. The trial Court found that the demarcation report (Ex. P-1) cannot be accepted. 6. The plaintiffs and defendants Jagat Ram and Dugdhi Bai preferred separate civil appeals under Section 96 ofthe Code of Civil Procedure, 1908 (henceforth 'fhe Code, 1908'). The firet appellate Court has partly allowed Civi! Appea! No.26W2007 preferred by the plaintiffs and dismissed Civi! Appeal No.27-A/2007 preferred by defendant No.1, Jagat Ram and defendant No.3, Dugdhibai. The first appeilate Court passed the decree that the plaintiffs are entitled to recover vacant possession of pieces of land bearing Khasra No. 18/2 area 36x27=972 Sq.FS. and 41x27=1107 Sq.Ft. from defendants No.1 ind 2, i.e., Jagat Ram and Shatrughan Thakur, respectively. 7. Both the above-said defendants have preferred second appeals. The second appeal of Shatrughan Thakur bears Second Appeal No.54/2009 and the second appeal of Jagat Ram and Dugdhibai bears SecQnd Appeal No.90/2009. 8. In the second appeals, learned counsel for th'e appellants have urged that the demarcation report (Ex.P-1) is not acceptable inasmuch as the said demarcation report was not made in accordance with the provisiqns contained in the Chhattisgarh Land Revenue Code, 1959 (henceforth 'the Code, 1959'} and that the said report Ex.P-1 was not made in the presence ofthe appellants. ./(. 9. I have heard learned counsel for the appellants and perused the records of the Courts below. The learned first appellate Court, in its judgment from paragraphs 19 to 42, has dealt with the validity and correctness of the Ex.P-1 in detail, which is the demarcation report prepared by the Revenue Inspector, Rajnandgaon. The learned appellate Court has clear!y recorded the finding that the tria! Court has committed error in not accepting the demarcation report (Ex. P-1) and not recording a finding on its basis that the defendants have encroached the suit lands belonging to the original plaintiff Bajirao. The appellate Court has recorded specific finding in paragraph 42 that merely because of the fact that the piaint map does not describe the boundaries, the entirs suit cannot be dismissed when Ex. P-1, the demarcation report fully taliies with the description of the encroached pieces of iand mentioned in paragraph 2 and the relief clause paragraph 11 of the plaint. The first appellate Court has also found that the suit for possession is within limitation as it has been preferred within 12 years from 13-10-1984 when the cause of action has arisen after obtaining the demarcatlon report, the suit being preferred on 30-3-1992. 11. The appellate Court has also found that the suit with respect to defendant No.3 Dugdhibai has rightly been rejected as Dugdhibai has purchased iands bearing Khasra No.22/15 vide sale-deed Ex. D-8, which }s a different piece of fand than the suit lands, which bear Khasra /' No. 18/2. .1-...1.. 3S vSSSh. » ^.^...u^ ^ ^ ^ JJ ?9 'v"y. 12. In the opinion of this Court, the fact as to the encroachment made by defendants Jagat Ram and Shatrughan Thakur is a pure finding of fact recorded by the first appellate Court after complete appreciation of the evidence available on record, which, according to this Court, is a correct finding in view of the eyidence available on record. Apart from Ex.P-1, there is another document dated 12-4-1990 Ex.P-8 produced by Bajirao. P.W.-1. The said document was by the Assistanf Superintendent Land-Records, Rajnandgaon to the -->nd Civil Judge Class-ii, Rajnandgaon in pursuance to the Court memo dated 5-12-1988 issued in Civil Suit No.34-A/85 (Chhinduram vs. Bajirao). !n paragraph 3 ofthe document Ex.P-8, it is clearly mentioned that on the lands of Bajirao bearing area 36x27=972 Sq.Ft. house of Jagat is situated and on area 44x27=1188 Sq.Ft. house of Gambhir (father of defendant Shatrughan) is situated. 13. In view of this report also, the finding recorded by the learned first appellate Court does not suffer from any deficiency or perversity. 14. So far as the argument regarding non-acceptability of the demarcation report (Ex. P-1) prepared in the absence of the appellants is concerned, it has to be seen that the requirement of issuance of notice to the interested party shall mean notice to a person claimins ownership on the plot for which demarcation is applied or the adjoinini plot, whereas in the present case, the appellants have not set-up their ownfirshjp on the suit land and the learned appellate Court has not passed any decree with respect to the -land belonging to Dugdhibai. Even othem'ise, demarcation made under Section 129 of the Code, J.S59 amounts to a proceeding conducted by a Revenue Officer and is ^.j-. .^' ^ ls&^^r -6?>HG!SS^ 4. ^ a revisable order, however, it does not appear from the record that the appellants/defendants have, at any point of time, challenged the correctness ofthe demarcation report (Ex.P-1$ either on fact or on the basis of any legal infirmity and also that they themselves did not make any effort to get the land demarcated by moving any application themsefves either individualty or cottectivety. in view of this situation, the argument regarding validity of the demareation report does not hold ground and Is not a substantial question of !aw arising In this appea! for 15. Both the second appeals faii and are hereby dismissed at tha admlssion stage itself. 16. A copy of this order be placed on the record of Second Appeal No^.90/2009. ;stiant Kumar Mishra Judge Go&sl Sf^ ~T,'" •'/.