HIGH COURT OF CHHATTISGARH. BILASPUR Second Appeal No.81 of 2007 APPELLANTS/: (PIaintiffs) RESPONDENTS/: (Defendants) 1. 2. 2. 3. 4. Laxman Das S/o Santram Das, Aged about 56 years, R/o Ramsagar para, Raipur, Police Statjon Tahsil & District Raipur (CG) Shreechand S/o Ghumanlal, Aged about 51 years, R/o Vitli Naka, Mahasamund, Present R/o Ganjpara, Mahasamund, Police Station & Tahsii & Distrjct Mahasamund (CG) Versus - Smt. Anusuiya, W/o Khumanlal, Aged about 56 years, Jajprakash, S/o Khomanlal, Aged about 28 years, Naval Klshore, S/o Khomanlal, Aged about 26 years, Suresh Kumar S/o Khomanlal, Aged about 39 years, All above R/o Mahasamund (C.G.) Ward No.15, 5. Laxmichand Chandrakar, S/o Unknown, R/o Mandi Road, Mahasamund, Police Station & Tahsil & Djstrict Mahasamund (CG) {Second appeal under Section 1 00 of the Code of CSvil Procedure, 1908} Present: Mr. Manoj Paranjpe, counsel for the appeliants. ^.^ Sinale Bench: Hon'ble Mr. T.P. Sharma. J ORAL JUDGMENT (29-9-2010) 1. By this appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code'), the appellants have challenged iegality & propriety of the judgment & decree dated 15-11-2006 passed by the 1st Additional District Judge, Mahasamund in Civil Appeal No.lO-A/2006 affirming the judgment & decree of dismissal ofcivii suit, dated 3-6-2006 passed by ths 1st Ciyj! Judge Class-l, Mahasamund in Civj! Suit No.3-A/2004, whereby learned Civil Judge Class-1 has dismissed the civil suit for perpetual injunction, confirfnation and possession of the suit property. ..^: /y^ 1%., -^ •f%^ ••i.^.n.^^.y^ ^ 2. After affording opportunity of hearing to the parties, learned Civil Judge Class-1 has dismissed the civil suit on the ground that the plaintiffs/ appellants herein have failed to prove the fact that they are owners of Khasra No.1205 which was in the possession of the defendants/ respondents herein. Judgment & decree of the trial Court were challenged in appeal before the lower appellate Court and the lower appellate Court while affirming the judgment & decree of the trial Court has dismissed the appeal. 3. I have heard learned counsel for the appellants, perused the judgment & decree of both the Courts below and recordsof both the Courts below. 4. Learned counsel for the appellants submits that in the present case, although he has not filed definite document relating to renumbering of Khasra or document to show that the Khasra number of the land purchased by the appellants herein was changed as new Khasra No. 1205, but the boundaries shown in the sale deed and evidence adduced on behalf of the appellants are sufficient to identify the property in question which was presently in the possession of the respondents herein. Learned counsel further submits that the question relating to encroachment can be weil decided on the basis of demarcation by appointment of Commissioner in terms of Order 26 Rule 9 of the Code. Although the trial Court has appointed Commissioner for local inspection, but the plaintiffs have not complied the order of the Court and have not submitted report in compliance of the order of the Court. Therefore, the plaintif'fs have filed another application for appointment of Commissioner which was dismissed by the trial Court. Learned counsei also submits that the Commissioner has not considered the evidence relating to boundary and, therefore, the plaintiffs have applied for fresh demarcation. Learned counsel placed reliance in the matter of Haryana Waqf Board v. Shanti Sarup & Ors. (2008 AIR SCW 6500) in which the Supreme Court has held that rejection of application for appointment of Local Commissioner for demarcation and dismissal of second appeal on the basis of concurrent findings of fact are not just and proper. 5. In the present case, the appellants herein have purchased Khasra Nos.1505/1^ & 1505/3^7 vide sale deed Ex.P-1. As perthe renumbering parcha Ex.P-2, Khasra Nos.1505/3^, 1506/4 & 1521/1^ were given new Khasra No.1205. As per evidence and claim ofthe respondents herein, .^^s^'^.^.. ^ Soma thejespondents herein are in possession of Khasra No.1205 and not of the land purchased by the plaintiffs. Opportunity of demarcation was provided by the trial Court and the Commjssioner has submitted its report, but instead of cross-examining the Commissioner, for the reasons best known to the plaintiffs, the plaintiffs have chosen to file independent application for demarcation of land by appointment of Local Commissioner and the same was rejected by the trial Court. The appellants herein have not challenged the aforesaid rejection before the superior Court and even have not taken course before the lower appellate Court. 6. In these circumstances, as per records of the Courts below, the plaintiffs have not proved the title over Khasra No.1205 in which the respondents herein are in possession. There is no question of fresh demarcation and, therefore, 1 do not find any substantial question of law for the decision of this appeal on the basis of concurrent findings of fact of both the Courts below. Consequently, the second appeal is liabie to be dismissed and it is hereby dismissed, at the admission stage itself. No order as to costs. Sd/- i 1 TR. Sharma Judge