c- ^^ :'!n(*t» IN THE HIGH COURT 02- CTiHATTISSARH AT BHASPUR. Civil Revision No. /^/ /2004 'r-y: lyis usaw, APPLICANT ./BFD. N0.1 Hasan Abdalla s/o Akhtar Ullah, aged about 62 years, Oecupation-Retj.red Pashu Chikitsalaya Kshetra Sabayak r/o (fedrafnagar, P.S* Basantpur, Tehsil Sfedrafnagar, District Surguja, C.G« V E R 3 U S NON-APPLICANTS ^: ^ 1. Jagdhariram s/e Raanarayan, age 65 years. f 2. Gopal Prasad Kashyap s/o Kaiahal, age 32 years. fi^^ 3. Radhesbyaa s/o Mandharl, age 30 years. &11 r/o vdlllage Wadrafnagar, P.S. Basantpur, Distrlct Surguja, e.G. .5 -5- (PI.AINTIFFS) 4. Tefasildar ifadrafiiagar, ^ B.i.strict Surguja, C.G. 5. 'Ifae State of Oihatti.sgarh, tbroagh Collector, surguja, Ambikapur. (DFD. N0. 2 & 3) CIVIL REVISION TOn>ER_ SECTION 115 OF THE GOOE OF CIVIL PROCEBURE. ^ BelHg aggrieved with the order dated l8.8»2004 passed in eivil Suit No. 8^y02 by the I3Cad Additional liistrlct Jadge, ftnMkapur, Distrlct surguja, C.G., the applAcant aamed above begs to prefer this raano of revlslon oa tbe followlng faets and grounds amongst others. contd..2 llilWRI" •<• '^ \-i. § ^ :.;;.^ ^^. ^l eSS ^2^) HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant KumatMishra APPUCANT NON-APPLtCANTS Civtl Revision No.151 of 2004 Hasan Alxiulia Versys Jagdhariram and others. GIVtL REVISiON UNDER SECTION 115 QF CODE QF CEVi PR(X;EDURE Shri S.R. Sinha, counse! forthe appitoant. Shri f.P. Singh, counsei for non-appficant No.1. Shri Sanjeev Agrav/a!, Pane! Lawyer for the Stat^non-applicants &5. (2) The defendant No.1 in the suit has preferred this revision chaitenging the order, whereby his appiication under Order 7 Rute 11 of C.P.C. has been rejected bythetrial Court. (3) Leameci counsel for the appticant submits that the plaintiffs have not pleaded or claimed any right in themsetves and that even otherwise from the statement made in the plaint it wouid ciearty appear that the piaintlffe have no right, t'rtle or interest in the suit property, therefore no cause of action has accrued in their favour for filing the present suit. Learned o&unset woutd further submits that the suit,as it was originally fited, was entertalned without considering the ptaintiffe' application under Section 91 of C.P.C., therefore the procedure adopted by the Court is lilegal and Shat the tearned Court belo>*; should have allowsd the applteation under Order 7 Rute 11 of C.P.C. ;?v#^sj .2-.- t,l,l:l,tlflff sgsjl (4) Per contra, counsel for the respondents'non-applicants have submitted that an application under Section 91 of C.P.C. was preferred aiong with the plaint whteh was not taken up by the triai Court for wftiich they cannot be made responssbte. They would also submststhat in any case, since the appiteation under Section 91 of C.P.C. has been aiiowed subsequentty, st woulci relate back to the date of fiSing of the surt and as such the suit is maintainabie. (5) On perusai of the contents of the plaint (Annexure W) it would appear that the defendant No.1 /apptfeant has encroached on a psece of Govemment ia.nd by treating the said land as iGhasra No. 738 (o!d Khasra No. 76/1) which he had purchas^S from one Devgiri Panika, however, the ptaintiffs alleged that the defendant No.1 has encroached Government iand and is creating / nuisance by his 'wongful act which affects the pubtic at larae. The ptaintiffe have prayed for a decree for a tieclaratlon th.at the iand possessed and encroached by the defendant No.1 does not consist of Khasra No. 738 and he ss an encroacher of the suit tanct and that the constmction made by him be demolished and the suit land be handel over to the defendanf No.3 for construction of 'Bui! House' in the Oepartment of Veterinary Servtoes, The plairstiff has further prayed for demarcatson of the suft land and the adjoining (ands to ascertain the correct position. (6) Section 91 of C.P.C. provides that in the case of a pubiic nuisance or other wrongfut act affecting, or iikety to affect, the pubito, a suit for a decteration and injunction or for such other relief as may be appropriate in the Girpumstances of the case, may be inst'rtuted either ^ by the AcSvocate Generai or with the !eave of the Court, by hw or more f|u''i!siWl ~3'-- persons, even though no special damage has been caused to such persons by reason of such publsc nuisance or other wrongful act. (7) From the impugned. order it would aff>ear that piaintiffs application under Section 91 of C.P.C. remained psnding in the trial Court and the trial proceeded, however, wrtien the defendant's appltcation under Order 7 Rute 11 was cons'idered, the triaS Court also aHowed the appltoation under Section 91 of C.P.C. Thus, at present, the plaintsffs appiication under Section 91 of C.P.C. stands allowed, therefore, it was not necessary for the piaintiff to have ciaimal any reslef for themsetves. (8) Lesrned counsel for the apptteant has also urged that the relsef seekina demarcation has been prayed and thus ths suit is barred under Section 257 of the Chhattisgarh Land Revenue Code, 1959, nowever, on perusa! of plaint it would appear that this relief te intncateiy connected with the first two reliefs claim^l in the piaint. The entsre issue is in re!ation to encroachment made by the defendant No.1 and whether the said encroachment is on Govemment iand or the defendant No.1 is in possession on his owi land, are matter of evidence for which a demarcation may be necessap/; Sherefore even for this relief the suit is maintainable. )) The tria! Court has not committed any illegal'rty nor as acted with matersa! irregutarity 'm the exercise of the jurisdiction v.ts'ile passing the impugRed order. This revision has no substanw, it faite, and ss hereby dlsm;ssed. ' . ___ < 10) : No order as to costs. Sd/- ; prashant Kumar Mishra Judge