F .--<»IT»*^' c .r. \ °"^^ !N_THEHIGH CQURT OF JUDICATURE AT BILASPUR u ^- SECOND APPEAL ^T^ /2U04 APPELLANT APPELLANT (in first appeal) DEFENDANT ^3^-^'"'}'"'^^ p, pt. No. •—t^l^rcc...d<Awi^ Tf,^^^^^..-- dsft.d —-i'""^ \ , Dansingh Patel, S/o Late Shri Gokui Lodhi, aged 55 years, Occupation- Senrice presently posted as Lecturei in National High School, Utai Road, Durg, R/o Santara Badi, Tahgil & District Durf (C.G.) Piess' de RESPONDENT -VERSUS- RESPONDENT (in first appeal) PLAINTIFF- RESPONDENT RESPONDENT DEFENDANT ^ 1. Rampai, Sf'o Bhagwan Singli, aged 34 years, Occupation- Cultivator, R/o Village Duniya, / P.H.N.24,TahsilDhamdha, District Durg (C.G.) 2. State ofChhattisgarhthrough Collector,Durg(C.G.) SECOND APPEAL UNDER SECTION 100 OF THE CODE QF CIVIL PROCEDURE ^ ^ ^l HIGH COURT OF CHHATTISGARH AT BILASPUR Sm^le^Bench: Hon'ble^hri Jxistice PrashantJKymarJMBhra Second Appeal No. 223/2004 Dansin^i Patel Versus Rampal and another ORDER Post for.8-07-2010 '«' Sd/- Prashant Kumar Mishra Judge -4'1- ^^^ I. l'®gss'" 'i; mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra S. A. No. 223/2004 APPELLANT RESPONDENTS Dansingjh Patel Versus Rampal and another Appearance: Shri Rajeev Shrivastava, counsel for the appellant. Shri Vimlesh Bajpai, counsel for respondent No. 1. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.2, 8ECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVILPROCEDURE ORDER (.i.y.07.2010) The instant second appeal has been preferred by the defendant against whom both the courts have decreed plaintiff's suit for demolition ofstmcture and vacant possession. (2) PlaintifE, Rampal instituted the suit on the pleadings that he is the owner of the suit land on which the defendant has made encroachment. On demarcation it was confirmed that the defendant has encroached on 5 decimal land belonging to the plaintiff. An application under Section 250 of C.G. Land Revenue Code was moved which was allowed in plaintifFs favour by the Naib Tahsildar, Dhamda, District Durg on 23/04/90, but yet the defendant continued his construction. The Sub Divisional Officer, pn appeal by the defendant, remanded the matter and on remand the Naib Tahsiljdar •T^y' "['W: ;-i ^h ]|j?r stayed the farther proceedings on the ground that a civil suit is pending between the defendant and his brother. (3) The defendant/appellant denied the plaintiffs ownership on the suit land and stated that it belongs to his elder brother Ishwar. According to him, his grand father was in possessioa and thereafter the defendant is in possession ofthe property. (4) The trial court by its judgment and decree dated 20 July, 2001, found that the plaintifF is the owner ofkhasra no. 891 area 0.( hectares and the defendant has encroached on 0.5 decimal land belonging to the plaintiff. The plaintiff produced sale-deed in his father's name as Ex. P-1 and the Khasra Panch Shala as Ex.P-2, demarcation report was submitted as Ex. P-3 and the order passed by the Tahsildar was filed as Ex.P-6. In the revenue record plaintiffs name has been entered as owner and from the demarcation report it was found proved that 1fae defendant has encroached on 5 decimal land belonging to the plaintiff. The trial court also found that the suit preferred by defendant's brother, Ishwar has been instituted with the coalition ofboth brothers and has no impact on the present suit. (5) The first appellate court has confirmed the findings recorded by the trial court on material issues and has dismissed flie first appeal. Learned counsel for the appellant has argued that the suit sufiers from non-joinder of necessary partv- and the suit is barred . under Section 257 ofC.G. Land Revenue Code, 1959. 'IE' T '^•- ?i.<as- 's^ -5 '*'^v ».• 1 ! li •'j Q (7) I have perosed the record ofthe courts below. (8) The plaintiff has proved his title by submitting the sale-deed in the name ofhis father (Ex.P-1) and the Khasra Panch Shala in which his name is recorded as owner. The fact of encroachment has been proved from the demarcation report (Ex.P-3). There are other revenue records to prove that tfae plaintififis the owner ofthe suit land. Thus, finding regarding ownership is supported by document submitted by the plaintiff. (9) The plea regarding non-joinder of necessary party has been raised on the ground that his brother, Ishwar has filed a suit claiming to be in possession of the land, therefore Ishwar should have been joined as party. There is no substance in Ihis argument, because as per demarcation report, the defendant/appellant is in possession by encroaching plaintiffs land. (10) Even otherwise, if the defendant is not in possession of the property, then he should not have any grievance in the matter. (11) Contention regarding the suit being banred under Section 257 ofC.G. Land Revenue Code, 1959 is also without any foundation in as much as the suit is for demolition of structure and removal of possession. (12) The suit is based on title. From the record it would appear that the defendant raised an objectica in the revenue court that plaintiff has no title on the suit property and iii Ifae civil court he is raising the 'l. 'itl a,i •ti question that the matter should have been agitated before the revenue court. Be that as it may, since the suit is for demolition of super structure which is in the nature of maadatory injunction and that Ifae case of the plaintiff is based on title, the suit is not barred under Section 257 ofC.G. Land Revenue Code, 1959. (13) Findings recorded by the courts below are supported by evidence on record. There is no illegality or pen'ersity in the findinj recorded by the trial court, which has been afGnned by first appellate court. There is no substantial question oflaw for determination in this appeal. (14) The appeal fails and is hereby dismissed at the admission stage. Sd/- Prashant Kumar Mishra Judge