uuIJRTC^F\uH£iATTli(3-AHHaTBlLr^.s?uS.^ LA. 'dmvKLmian Som Avinash Chandr Shmiiia . and another Jiidgment post for ^- -6-2008 Sd/- Dhirendra Mishra Judge i^l.-6-2008 ~~ OF S.A. No. ^^ Shivki.miari Som W/o Sarveer, aged about 52 ycai's, R/o ^dllagc Saliaspur Lohaca,, Talisil Kavardha, Distt. Ka-birdhain (CG) 1. Avmash Chaiidr Shaniia, S/o Shri Dhanush B'asad Sharma, aged about 48 yeai's, R/o viUage SahaspLir Lohara, Tahsil Kavardha, Uistt. KaDuxyiain (C(J| State of Chhattisgarh, tuu-ough District Magistrate, Kavai'dlia, Distt. Kabirdhaiii 2. Sm-i D.C. Jaui with Shri Rajesh Jaiii, Advocate for the appcllajit Shri Sunil Sahu, Advocate for the respondent No. 1. Sm-i Sushil Dubey, Govt. Adv. for the State JUD E H T <^^r@=2^8 Dhlreiidra Mishra, J. This second appeal under Section 100 of the Code of Civil Procedure is directed agaiust the judgment and decree dated 24-12-2007 passed in Civil Appeal No. 29A/2007 whereby the lemT.ied District Judge, Kabirdhain (KavaTdha) has' dismissed the appeal ' of the appellant against the judgrnent aiid decree dated 10-8-200'7 passed in Civil Suit No. 32A/2006 by 'the 2ad Civil Judge CIass 11, KavaixUia, who decreed the suit for declaTBtiou and possession of the plaiiitirl/respondent No. 1. (Hereijiafter, fhe parties shall be described as per tneir description before the trial Court)* 2. Brieflv stated the facts necessary for decision of mis second appeal ai'e that the plaintiff filed a suit wim me averment mat me appellm-it has consti-Licted a house adjacent to me suit land belong t.o the appellant. At mat time, the plaii'itiff had obiected that the appellaiTt was constnictin^ the house by eucroachiiig a part. of his laiid, however tiie defendant had assured Uiat iu case, encroachnient is found Oii demai'cation, she woi.ild remove the eucroachmeut. The suit, land was demarcated by Uie Revenue luspector on appiication ol me plauititt anci as per tiie clemarcation report. daled 22-9-2005, the defendaut was in iMegal possession over 0.01 decimal (30 x 20 Sq, Kadi) laiid ofthe plaiutitL However, the defendaiit refused to remove the encroacliiiient aiid mereatter, t.fae mstaiit. suit. was lilecl. 3. The defe.ndaiit No. 1 iii her written stat.ement has pleaded that late Lal Chhatrapal Singh, . ex-Jainindar of Lohara had given the suit land t.o her father some 40 vears. back Ibr constructiug hoiise. Her father constructed house ov€;r the suit laiid 40 yeai-s back. Smce tlien, she mid her lamer are residing there. She is residing in the said house in. the capacity of its owner aiid thus she has perfected her title by adverse possession. The pleintm has got his ueiiie- niutat.ed on the basis of a forged Will. 4, On the basis of the pleading of the respective parties, issues were frained. The plauitiff exainined himself as P.W. 1 and other witnesses uaBiely Vlre'udra Singh (P<W. 2), Preiulal (P.W. 3), LatelTaiii Parilim', Revenue Inspector (P.W. 4), Rikhirani Taraiii, Halka Patwari (F\W. 5) aud AmaTchand Chopra (P.W, 6) in support of l-iis case whereas the defendmit exaiiiined hersetf as E).VV. 1, her wituesses namely Rati Thakur ('D.W. 2{, Fatteraiii ('D.W. 3). Kmitibai (D.W.4'j aiid Smt. Prabhaclevi (D.W. 5). 5< The trial Court decreed fhe suit of the plaintilf with fhe finding that the plaintiff is Uie title holder of the suit propeity described in Schedule A of me plaint; the defenclaiit no. 1 has illegally encroached upon the suit lejicl of the plaintilf by CGnstiTicting a wall; me plaiiitiff is entitled to recover the possession of the encroached land froni the delendant aud the valueliou of suit and •the Court fee appeuded wifh the piai.nt ai'e proper. 6. The civil appeal prefeiTed by the appellaiit herein vvas also dismissed by tlie impugned judgment aiid decree wim identical fiudiugs< 7. The appellaiit has questioned the legality, validi'ty aiid correctuess of .the judgmeuts passed by both tlie Courts below on the gi'ounds that the plaintiff is clauiimg his title tm'ougli a WiU purportedly executed by one Rani Smgh Gond, a person belonging to Scheduled Tribe, however Uie WiU Uas not been produced during trial aiid without probate, the plaintiff caiinot beconie absolute owner of tlie suit laiid on the basis of the Will aiid thus, the plaintiff has failed to prove his title over the suit land, The Couils below retyiiig upon tl-ie ciemarcation report ol tlie Kevenue inspector ot Kx. P-1, have held the defendaiit No< 1 to be encroacher, however the demai-cation was done behmd the back of Uie defendaiit 1No.i aiicl it does not beai' lier signatm'e aiicl.no credence could be grveu t.o such demai'cation report. The oral evideuce adduced bv the defendaiit No, 1 has been ignored aad Uie Courts below have -wronglv held that the defendaiit has failed to prove adverse possession^ The above findiiig is aiTived at by ignoring the fact that the faUier of the defendaiit. No. 1 in his litetime ai-id tliereaiter slie was in possession over me suit laiid after constructmg house smce last 20 veai's. 8. Heaixl the leanied counsel for the appellaiit on admission. 9. T'he trial Court, on the basis ofthe document of Ex. P-3 Khasm-a P.aiichshala mid copy of B-1 Kistban.di Miatauni, m which the plaintm is recorded as owuer of the suit property aiid considering that the defendaiit has not produced aiiy document pertaining to her title over the smt laiid, has held that title of U-ie plaintiff over the suit laiid is established and the defendai-it has failed to prove that she was iii possession of me suit laiid witlim the knowledge of the plaiiititf smce lEist 20 years/ It has beeu further held that from. 'the evidence available on record, it is established that. the. ulaintiff caine to kuow about the'illegal possession. of the defeudant onty 1 % yeai- before institution of the suit aiid, therefore, she has not, perfected her title over the suit land by adverse possession. Relying upon the order sheets of me Naib Tahsildai' Ex. P-1, demai'cation report Ex. P-2, field book aiid map Ex. P-3 aiid P-4 respectively, order passed by Uie Naib Talisildai" E'x* P~6, certifi.cate of Ex. P-7 issued by tlie Chief Executive Ofllcer, Jaiipacl i-''aiicliayat, resoiution 01 tiie U-raiii Faiicliayat, Loliai'a aiid evideuce of the Reveuue inspector Lateti'eiii Paiihar (F\W. 4) and Halka.Patwari Rikhiram (P.W, 5j and also reiying upou the document ofEx. D-1, it has been held that at the time of demarcation, the defendant 1 Shivkuuiar was present alon| with the plaintiff aiid other persons. Suice the defenda^iit did not challenge the deriim'cation repoil:: aiid did uot apply for fresh. demarcatiou, relviug upou the demarcation report, it has 'been heid that the defeudcmt is iu illegal possessiou of 600 Sq. kadi of the suit laiid aiid the suit of tlie plailitiff for possession lias Deen uecreecl. 10. Reliance pla^ed by the deleudant No< 1 iu the following judgments have no beai-iiig iii the facts of the present case, m which it has been held thus:- i. In -v- Lal others1, the Courts below dismissed the suit of me plaintm for possession with a m-iding that the plaintm had falled to prove me dispossession withm 12 yeai's of the suit, allowing the appeal of the pleintiff, the High ' Court decreed . his suit with costs tlirougli out. with obsei-vations Uiat there caii be no AIRC38) 1951 Orissa 183(2) 'discontiiiuaiice' Vvithin tiie meaiiing of ti-ie statute merelv because of absence of physical possession. It. has been fmther held tliat a niere repudiation of the plailitiffs title behind his back is not eiiough to dispossess him unless it is foliowed bv sonie overt act. The payment of house tax is not such an unequivocal act as would be sufticient to at.U''ibute hostile inteution t.o the piaiutiff The Courts below fell into eii eiTor m. interpreting physical occupation of Rup Rani aiid payment of house tax by mm as constitutiug posscssion adverse T.o him as the Eibove acts do not constitute un assertiou of hostile iDteutiou so as t.o aiiiount t.o aclverse possessiou in iaw, ii. In the matter of Kothari -v- Vtthaldas otiiers2, tlie plauitiffflled.the suit for declaration of title and possessiou iu respect of the suit property. 'llne suil was clisuiissed Dy tiie trml jucige on me a'ound that the suit. was bad for non-joinder of necessaiy parties and me suit was barred by limrtation, the first appellate comt upheld the judgment and decree of the trial Judge on both "these grouiids, secoud appeal preferred by the plmntitt was aiso clismivssecl wim aii observation mat. tA-ie fa-ther of the plaintiff voluntarily al^andoued "Uie possessiou si.nce 1925 mid the premises has been used contmuously by the niembers of the club for recreatiou purposes aud thus, it is clear case of dis-continuance of possessiou aud Aiticle 142 applies t.o it and the suit is cleaiiy baiTecl by time as the saiiie was filed on 30-1- 19.53. 2AIR1962MP31 ^/r\ 11. Iu me iustmit case, as already m.entioued in the foregoing pai'agi'aphs, both tiie Comfs below have recorded a concuiTent fmditig of fact mat me plaintiff is the owner of tlie suit laiid; the defendaiit has faiied to prove her possession over the suit. laiid adverse to tlie interest. of the plaiiitiff witliiii the kiiowledge of the plaintm for more thaii 12 yeai's, as the plainliff leamt about the possession of ihe defeudant oufy 1% yeai's before the mstitution of the suit; the Revenue Inspector wno conclucted t.ne demai'cation on tlie appiication ot Uie plaintiff hi the preseuce of the defeudm'it, has recorded a findiug that. the defendaiTt is in illegal possession over the suit laiid on area 0.01 decimal (600 Sq. Kadi), the defendant did not. question the correctness of demai'cation report bv iumating oijy fresh proceeding for demarcation .and thus, illegal possession of the defendmit. over the smt laiid is also established, The above Imdiugs of both the Courts below are concuiTent. fmdings of fact aiid no question of law niuch less aiiy substantial question of law as proposed by the appellant in pai'a 9 arises for adjudication of this appeal. 12* The appeal is devoid ofsubstmice. The saine desei-ves to. be dismissed and is accordinglv dismissed at the admission stage itselt. Sd/- Dhirendra Mishra Judge ^^-6-2008 -~