HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 28 of 2005 ^ 1 Smt. Badrunnisa & Others Vs. Janki Bai Post ofpronouncement ofjudgment and orders on2Z-/06/2009. Sd/- N. K. Agarwal AJk "f mGH COURT OF CHRA.TTISGARH AT BILASPUR SecondAppeal No. 28 of 2005 Appellants PIaintiffs Respondent Defendant I ^ 1. Smt. Badrunnisa aged 45 years W/o Mohd. Rashid Khan, R/o Pipariya, behind Shyam Talkies, Itwari Bazar, Vinoba Ward, Piperiya Distt. Hoshangabad, (MP). 2. Smt. Sabra Nisha, aged 43 years Wd/o Mannan Khan, R/o near Ahmednagar Masjid Shyamnagar, Power House Bhilai, Distt. Durg (CG). 3. Smt. Hazra Nisha aged 40 years W/o Majid Khan, R/o Tatiband, Rotary Nagar, PO and Distt. Raipur (CG). Versus Janki Bai W/o Dayal Singh (Dead) through LRs Geeta Bai W/o Sunder Singh., Near Babuloal Talkies in the Gali (lane) Golbazar ward, PO & Distt. Raipur Chhattisgarh. Second Appeal under Section 100 ofCode ofCivil Procedure (Sinsle Bench: Hon'ble Mr. N.K. Asarwal, J.) Present : Smt. Meera Jaiswal, Advocate for the appellants. Shri PP Sahu, Advocate for the respondent. ORDER (Passed on 22^ day ofJune, 2009) Heard on admission. 1. The instant second appeal is directed against the judgment and decree dated 19.10.2004 passed in Civil Appeal No. 38-A/03 ^ passed by Vth Additional District Judge, Raipur, affirming the judgment and decree dated 16.07.2003 passed by IIIrd Civil Judge, Class II, Raipur, in civil suit No. 183-A/01, whereby, the suit of the appellant plaintiff has been dismissed by both the courts below. The appellants are the legal representatives of deceased Rabia Bai i.e. original plaintiff, and substituted in place of plaintiff during pendency of this second appeal vide order dated 30.03.2009. The respondent is legal representative of original defendant. The brief facts of the case are that^ the plaintiff instituted a suit against the defendant, seeking relief. of injunction, against alleged illegal construction over the suit property by the defendant. As per plaintiff, suit property is part ofKhasara No. 644, Area 9559 Sq.f., on which earlier one house bearing No. 274m municipal records was also situated. The defendant over some part of the suit property i.e. marked as red in the plaint map is constructing house which is illegal and deserves to be restrained. In reply, the defendant denied the title and possession of plaintiff over the suit property and also pleaded that the defendant is in possession ofAbadi Bhumi Khasara No. 12/274 which is purchased from daughters of plaintiffs uncle vide sale-deed dated 13.01.81 and since then she is in possession over it. ^ «o 5. The trial court framed several issues one ofthem was "Whether the plaintiff is owner and in possession of the suit property which is part of Khasara No. 644 Area 9559 Sq.f. situated in P.H. No. 106A" and other was "Whether the defendant is interfermg in possession ofplaintiffover the suit property". 6. The plaintiff did not produce any document during the trial showing her title and possession over the suit property and further plaintiff neither placed clear description of the suit property and area of encroachment (on which allegedly the defendant is interfermg in possession of plaintiff). On the contrary, although the plaintifffiled an application on 22.11.02 under Order 26 Rule 9 of CPC to ascertain the location and possession of defendant over the suit property, but the same was withdrawn by her on 17.01.03. 7. The trial court., after appreciating the pleadings of the parties^ evidence led orally as well as documentary, held that the plaintiff failed to prove her ownership and possession over the suit property and also failed to describe and establish the interference/encroachment by the defendant over the suit property, and dismissed the suit. The findings are afflnned by the First Appellate Court. 8. The main contention raised by Smt, Jaiswal, counsel for the plaintiffs is that since there is a dispute regarding identity of suit property and therefore, both the courts below ought to have appointed Commissioner., as provided under Order 26 Rule 9 of CPC. Having not done so by both the courts below, the ^»»^»»^^, judgment and decree passed, is per^erse and deserves to be set aside. On this point, she placed reliance on judgment of Supreme Court in the matters ofHaryana WaqfBoard v. Shanti Sarup & Others (reported in 2008 AIR SCW 6500) and Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanlcsale (Dead) & Others (reported in 2007 (6) Supreme Court Cases 737). 9. The appellant also moved an application under Order 41 Rule 27 read with Order 41 Rule 1 of CPC for taking certain documents on record. The documents annexed with the application are receipt of municipal tax regarding house No. 274. 10. Having heard the contentions raised by counsel for the appellants, and having perused the record with utmost circumspection, this appeal has no merit on the following reasons : i.) The findings recorded by both the courts below are that the plaintiffdid not establish his right, title and legal possession over the entire suit property or on any part thereof. ii.) On bare pemsal of record it would reveal that the plaintiff did not produce any document i.e. title- deed., revenue papers showing her title or title of her father over the suit property and as per her, the house No. 274 is at present not in existence that too it is not the case of the plaintiff that the house %3S^- '^ 4,^ was constructed over the entire suit land, not any papers were produced or proved to show that said house was constructed at any point of time over part of Khasara No. 644, and therefore, eventhough the grounds taken in the application under Order 41 Rule 27 of CPC by the appellant are not tenable^ but also, do not help the appellant in asmuchas it does not reveal that the said house was constructed on Khasara No. 644 and the plaintiff was owner and in possession of the disputed part ofthe land. iii.) The plaintiff did not mention in the plaint nor adduced any evidence regarding the area of encroachment/interference by the defendant over the suit property. It was also not established that whether the defendant is interfering over the suit property. iv.) The suit has been dismissed mainly on the ground that that plaintiff did not establish ownership and possession over the suit property and therefore., the question ofidentlty ofproperty was not germane in the facts and circumstances of the case, and secondly as per plaintiff, the suit property is situated in the heartof Raipur city i.e. Golbazar., and also earlier there was house which was part of the suit property, reglstered in the Municipal g> Corporation, Raipur as house No. 274 and therefore, it cannot be said that there is any difficulty in establishing identity of property without examinmg Commissioner. Moreover, the plaintiff although filed an application under Order 26 Rule 9 of CPC but later on the same was withdrawn by her and the plaintiff never applied for appointment of Commissioner thereafter either before the trial court.during the first appeal and then during this second appeal. Therefore, the case law cited by counsel for the appellants does not support her case in the facts situation ofthe case. 11. Therefore, the courts below reached to the conclusion based on appreciation of oral as well as documentary evidence led by parties, recorded a concurrent finding of fact, andjudgment and decree has been passed. I am of the considered opinion that no substantial question of law arises for determination in this appeal. The appeal is therefore liable to be and is accordingly dismissed at admission stage. Consequently^ I.A. No. 911/05 also stand dismissed. Sd/- N. K. Agarwal Sahu