inauuiai 11-.09- Sd/- Dhirendra Mishra Judge HSGH COURT OF CHHATTSSGARH AT S.A. No. 265/2008 A.ppei!ant Kesoondsnt lattuiai Verma \ /^\ n^.fr^ t c -?^ V^i S?U2? Coiiector, Rajnandgaon and Shri A.nup Mazumdar learned counsei for the apDeiiant. ivi e (Del'.vered on 19-9-2006) 3hirsndra Mlshra, J The appellant has preferred this second appea! U/s 100 o? the Code of Civii Procedure against the judgment and decree dated 25/3/2006 passed by learned Second Additional District Judge Rajnandgaon in First Appeat No. 38-A/05 by which the appeal preferred by the appeSiant against tha judgment and decree dated 18i'12/2001 passed by learned Civil Jiidge Class-il Rajnandgaon, in Civil Su.it No. 227-A/2001 has been dismissed and the suit for declaration and perpetia! injunction filed' by the appeiiant has ateo been disrnissed. 2-. Undisputedly the su't property was al'otted to the appellant under Hire Purchase Agreernent by the respondent No.2. Grievance of t'ne appetlant is that owners of house No. 89 and 90 have encroached upon the vacant 'and situated in the 'A'est.ern side of the suit oroDertv'and in the rernaining space ths fjRf^^risnt F\|rj 9 i=; i'nrf^rf'^ik'ln^ ^nn^ns^.^n /sf ^uhHr: drairi thoiinh th^ ^ri^i^Jii'-a^C^M^ l^I^^i^. s-u? ^iUth^^?l^:C^r^.Ul-^ ^/^/t3'h?wi^^L3:wEi^ ^l t.^^^j'EI^- \*^i^lltl l,il\/^-i^<ii tili^; -^CAUi"^ has been ailotfsd to h'm as per the agreement and on the basis of these averments a su.it for declaration that the disDuted area described in schedule "A" is In the ownership of the plaintiff and the defendants be restrained from constructing the pub!ic drain over the same. In. the written statement the defendants have con'tended that the area encroached by the owners of house Nos. 89 and 90 has not been mentionec! In the pteint nor they have been arraved as defendant thouah thev are necessarv for adjudication of the suit. It has been further avet'red that Kaccha drain already exists at the dispute space 3- ^ s- r'~- and it is being used by the inhabitants and they have no plan to erect the Pa.kka drain. The ownership ofthe plasntiff over the disputed space has been denied. 3 • On the basis of the pieadings of the respective parties issues were framed and the suit was dismissed by the triai Court by recording a finding that the piaintiff has not been abie to prove encroachment by the owners of House Nos. ^9 and 90 and he has also faiied to prove that fhe defendants are constructing Pak.ka drain on the vacant plot situated in the western side of the suit property and the defendani has not executed the registered deed in favour of the plaintiff after handing over the possession of the suit property, Issue No. 6 was aiso framecj to the effect that whether owner encroaching upon house ?\'os. 8i and 90 is the necessary party, if yes, what is the effect? However the tearned tria! Court has not deait swith this issue in his judgment and has dismisssd suit by recording a finding against issue Nos. 1 to 4. ^' The appeai preferred by the appeiiant has been dismissed by ths impugned judgment with a fsnding that the appei'iant has faiied to prove 'the i'ltegai encroachment alteged against the ownsrs of plot Nos. 89 and 90 and also ho'ding that no'demarcation regarding encroachment by ths ovi/nsrs of houss Nos. 89 and 90 has been done and they have not been made parties in the proceedings and in the aforesaid cireumstances the findings recorded by fhe triaf Court h'as been confirmed. 5. Learned counse! for the appeiiant submits that the Courts beiow were not justiffed in d'smlss'ng the suit for non j'oinder of the party as the encroachers were not t'ne necessary party as per the pieadings. It is further argued that there is no dispute v/ith respect to the title of the' piaintifF and in the aforesaid cjrcumstances the Courts below ought to have ciecrsed the suit for perpetual inj'unction and for the above reasons the .following substantia! questions of law arise for adjudication of this sppeal: (i) VVhether the court beiow was justified in dismissing the suit of the appei!ant for non joinder of parties which were not necessary as per his pleadings? - —-— ^ (lii) (ii) Whether the suit fi!ed by the appellant could not be decreed on She admission of his titie by the respondents and 'oe injuncted from interfering with his possession over the suit land? Whether the courts below comrnitted an error of !aw in not declaring the title of the appellant ovsr suit !and, though admitted, sn absence ofdemarcation rsport? ! have heard iearned counsel for the appeilant. 6. Ths defendants have disputed the contentlon of the piaintiff that the disputed drai" is being constructed over his iand.They have aiso raised an objection in their written statement that the piaintiff has made an ai'egation against the owners of house No. 89 and 90, of encroachment over the vacant land and in the aforesaid circu'Tsstances the question of iden'tifri' of the property over the drain being constructed was invoived and both the Courts be'ow have rightly dssmissed the suit with a findini that the p'aintifF has faiied to provs the al!eged constructlon of drain over his !and as there is no demarcation report. Even othewise, the owners of house Mo. 89 and 90 have been rightly heid to be fhe necessarj' pariy for adjudication of the dispute raised in the sujt. 7. In view of the aforesaid anab/sls this Court is of the opinion both the Courts be!ow have not committed any illegaiity in recording 'the concOrrent finding of fact and disrnissing the suit of the p'aip.tiff and thus the impugned judgment and decree do not c.ail for any interference by this Court as no substantial question of iaw as proposed by the appeliant arises for adjudication of this appea!. !n the resuit, the appeal being devoid of substance is liable to be dismissed and it' is dismissed at the admission stage itseif. Sd/- DhirendraMishra Judge