IN T11E HONBLE fflGH COURT OF CHHATTISGARH AT BILASPUR ^'^ W.P.f227')No. ^^3 /2010 SJNGLE PETITIONER PLAINTIFF ,^ 52%^ i7-ft '*'•s^"' RESPONDENTS DEFENDENTS VibhutiNarayanTiwari, S/o Lalmani Tiwari, aged about 56 years, R/o MaimuChowk, TikraPara, Bilaspur, Tahsil and Distt. Bilaspur (C.G.) VERSUS -^" :1. RadhiaBai.W/oKripa RamDhobi, aged about 56 years, R/o Near Goverament Well, Mannu Chowk, Tikra Para, Bilaspur, Tahsil and Distt. Bilaspur (C.G.) 2. StateofChhattisg^h, Through the Collector, Bilaspiir. WRTT PETmON UNDERARTIGLE 227 OF THE CONSTTTUTION OF INDIA -u- HIGH COURTOF GHHATTISGARH. BILASPUR SINGLEBENCH : HON'BLE SHRIPRASHANT KUMAR MISHRA. J. W.P. (227t No. 2748 of2010 PETITIONER Vibhuti Narayan Thwari. Versus RESPONDENTS RadhiaBaiandanother. WRIT PETmONUNDERARTICLE2270F THE CONSTrrUTIONOF INDIA. Shri Ravindra Agcawal, counsef for the petftioner. Shri Somnath Verma, counsel for fte respwidentNo.1. Mlss Sangeeta Mtehra, Panel Lawyer tor the State/r^pondent No.2. i ORALORDER (11ffl2Q011) Following oral order of the Court was passed by PrashantKumarMishra.J. * Heard finally witti the consent of leamed counsel forthe parttes. (2) Suit preferred by the plaintiff/petitioner for delh/ery of possession was decreed on 31/10Q(X)3 by the (X Civil Judge Class—It, Bltaspur in Civil Suit No. 132-AQ002. In the decree it was directed ttiat plaintHT is entitled to recover possession of such area of landwhich is in possresion of defendant out of the tptal area of 2300 sq. ft, after getUng ft demareated. (3) During pendency of the suit plaintiff had moved an applieatton for demarcation before the Tahsildar. The Revenue Inspector, Bilaspur submitted a reporton 28/03/2004 inresponw tomemoissued by Vhe Tahsildar on 27/03/2003 i.e.before passing of the decree by the trial Court. This demarcation was ofcijected by the plainMT on submisssion that the demarcation has taken place in his ateence and that the r^»orthas been submitted without visiting the spot. The Revenue Inspector, Bilaspur again subm'rtted a report on 15/08/2cxM7/rtara/fa menttoniroftat there is discrepancy aboutthe areawhichis diverted out ofthetotalarea of 2300 sq. ft of Khasra No. 152/4. TheRevenue Inspectorrequestedthe Fahsildar to get the land demarcated from the Dwersion Section. ^ l^1 (4) Wrth this background pet'rtioner moved an applicatlon before the ExecuSng Court underOrder 26 Rule 9 of C.P.C. for local inspecUon and demarcation to ascertain as to on which area the defendant is in illegal occupation so that the decree can be executed. (5) Leamed Executlng Court has reiected the application fbr the reason that the demarcatfon has already been carried out and fresh demarcation is not requfred. (6) Having heard learned counsel (br the parties at length and peruse the record, it appears that the eariier demarcation was made nrt atthe instanee of CM"1 Court but ttie same was made on the applicatton made by the petitioner before the Tahsildar much before the passing <rf the decree and even the eariier demareafion report subtnitted on 2(y Mareh 2004 vrasobjected and thereafter the Revenue Inspector has recommerided that since some part of Khasra number gpipears to be diverted, the diversion shoukl becarriedout bythe Divereion Secfion. (7) In vlew of the above and particutariy in viewof the fact that while passing thedecree the trial Court had itseffgranted nberty to the plalnW /decree holder to get the suit land demarcated and to recover possessioft of thearea which is in ill^al occupation <rf the defendant, ExecuUng Court should have allowed the application for local investgation and should have issued the commteion for thispurpose. (8) Consequentfy, it is directed that the ExecuUng Court shall gd the land demarcated from the DiversionSeaion of the Cotlectorate and shall proceed in accordance with law to execute the dwree after obtaining the report. (9) With thisobservation, theinstant writpetition is allowed. __ Sd//- Prashant Kumar Mishra Judge ^-