IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.) SECOND APPEAL N0. <90 c-( /2009 fSECOND APPEAL UNDER SECTION IflTQ OF CIVIL PROCEDURE CODE) y . 35' • APPELLANTS : J='; EFENDANTN0.1&3 ^^1^... > ..(^s? ..-•-<».,-^1\^- RESPONDENTS: •'• (PLINTIFFS) T DEFENDANT No.2 i- Jagat Ram S/o. Budhdhu, aged about 65 years, Dugdhi Bai Wife of Jagat Ram, aged about 55 years, Both R/o. Basantpur, Ward No. 38, Kochiya Gali, Tahsil and District Rajnandgaon (C.G.), VERSUS 1. <;. Dev Singh @ DeviSingh Soni, S/o. Baji Rao, aged about 28 years, Fool Kunwar, Widow of Baji Rao, aged about 65 years, -2') ^ ^ Shila Agrawal, Wife of Madhu Singh / Agrawat, aged about 45 years, 4. ^, Basanti Maitriya Wife of Sahdev <L-' Singh, aged about 43 years, «2- All R/o. Basantpur, Ward No. 38, Tahsil and District Rajnandgaon (C.G.) Shatruhan Thakur S/o. Gambhir Thakur, aged about 45 years, R/o. Basantpur, Ward No. 38, Tahsil and District Rajnandgaon (C.G.) SECOND APPEAL UNDER SECTION 100 OF CIVILPRQCEDUJ15 H HSGH COURT OF CHHATTISGARH AT^ILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra ^. Second Aopeal No.54 of 2009 Shatrughan Thakur versys Devsingh @ Devisingh Soni and others Second Aopeal No.90 of 2009 Jagat Ram and another versus Dev Singh @ Devi Singh Soni and others ORDER Postfor.to-01-2010 Sd/- PrashantKumarMishra Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mjslira \ Second Appeal No.54 of 2009 Appellant Respondents yersys Shatrughan Thakur Devsingh @ Devisingh Soni and others Present: Shri R.S.Patel, counsel forthe appellant. Shri Anup Majymdar, counsel fpr respondents No.1 to 4. Shri Vishnu Koshta, counsel for respondents No.5 and 6. Second Appeal under Section 100 ofthe Code of Civil Procedure Second Appeal No.90 of 2009 Appellants Respondents versys Jagat Ram and another Dev Singh @ Devi Singh Soni and others Present: Shri Vishnu Koshta, counsel for the appellants. Shri Anup Majumdar, counsel fpr respondents No.1 to 4. Shri R.S.Patei, counsel for respondent No.5. Second Appeal under Section 100 ofthe Code of Civil Procedure ORDER (Passed on ^.o^Januarv, 2010) This order shall govern the disposal of Second Appeal No.54/2009 (Shatrughan Thakur versus Devsingh @ Devisingh Sonj and others) and Second Appeal No.90/2009 (Jagat Ram and another versus Dev Singh @ Devi Singh Soni and others) arising out of a ^ fy Si common judgment and decree dated 23-12-2008 delivered by the District Judge, Rajnandgaon in Civil Appeal No.26-A/2007 and Civil Appeal No.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-1, Rajnandgaon in Civil Suit No.288-A/2005. 2. The appellants herein were defendants in the suit preferred by one Bajirao (sjncedeceased), 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. 18/2 as described in Schedule 'A' annexed with the plaint. 3. It was the case of the plaintiffs 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 whjch the defendants have illegally encroached, which fact came to the knowledge of the plaintiff on 12-4-1990 after a demarcation report. The original plaintiff claims to have purchased the pieces of land 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 statement and denied the plaint allegations and averred that the demarcation has not been made in their presence, therefore, the said demarcatjon is not binding on them and that they have not encroached \^ the lands belonging to the original plaintiff Bajirao. ^ -^- ^v^ 5. The leamed trial Court dismissed the suit although the triat Court found in answer to issue No.1 that the original plaintiff Ba|irao was the owner of the suit lands. The trial Court found that the demarcation report (Ex. P-1) cannot be accepted. 6. The plaintiffe and defendants Jagat Ram and Dugdhi Bai preferred separate civil appeals under Section 96 of the Code of CJvil ) Procedure, 1908 (henceforth 'the Code. 1908'). The first appellate Court has partly allowed Civil Appeal No.26-A/2007 preferred by the plaintiffs and dismissed Civil Appeal No.27-A/2007 preferred by defendant No.1, Jagat Ram and defendant No.3, Dugdhibai. The first appellate 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.Ft. and 41x27=1107 Sq.Ft. from defendants No.1 and 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 Second Appeal No.90/2009. 8. In the second appeals, learned counsel for the 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 provisions 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 of the appellants. -^. v\y ^- h^ 9. I have heard learned counsel for the appellants and perused the records of the Courts below. 10. 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 clearly recorded the finding that the trial Court has committed error Jn not accepting the demarcation report (Ex. P-1) and not reoording 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 plaint map does not describe the boundaries, the entire suit cannot be dismissed when Ex.P"1, the demarcatlon report fully tailies with the description ofthe encroached pieces of land mentioned in paragraph 2 and the relief clause paragraph 11 of the plaint. The first appeljate Court has afso found that the suit for possession is within limitatjon as it has been preferred within 12 years from 13-10-1984 when the cause of action has arisen after obtaining the demarcation 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 lands bearing Khasra No.22/15 vide sate-deed Ex. D-8, which is a different piece of land than the suit lands, which bear Khasra No.18/2. - 1 ....s~. ^ bi^ ^NN» 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 evidence available on record. Apart from Ex.P-1, there js another document dated 12-4-1990 Ex.P-8 produced by Bajirao, P.W.-1. The said document was submitted by the Assistant Superintendent Land-Records, Rajnandgaon to the 2nd Civil Judge Class-11, Rajnandgaon in pursuance to the Court memo dated 5-12-1988 issued in Civil Suit No.34-A/85 (Chhinduram vs. Bajirao). In paragraph 3 ofthe docurnent Ex.P-8, it is ctearly 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 ofdefendant 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 ofthe 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 claiming ownership on the plot for which demarcation is applied or the adjoining plot, whereas in the present case, the appellants have not set-up their ownership on the suit land and the learned appellate Court has not passed' any decree with respect to the land belonging to Dugdhibai- Even otherwise, demarcation made under Section 129 of the Code, 1^.959 amounts to a proceeding conducted by a Revenue Officer and is •^- ^1 ^ ^ a revisable order, however, it does not appear from the record that the appellants/defendants have, at any point of time. challenged the correctness of the demarcation report (Ex.P-1) either on fact or on the basis of any legal infirmjty and also that they themselves did not make any effort to get the land demarcated by moving any application themselves either individually or collectively. In view of this situation, the argument regarding validity of the demarcation report does not hold ground and is not a substantial question of law arising in this appeal for determination. 15. Both the second appeals fail and are hereby dismissed at the admission stage itself. 16. A copy of this order be placed on the record of Second Appeal No.90/2009. Sd/- Prashant Kumar Mishra Judge Gopal