^ ct'^ -^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Singlt Second Appeal No. / 2-r?—Of 2006. € APPELLANT AAINTIFF ^y ^^ ^ Swami, Shri Dudhadhari Math, ^ Registered Public Tmst, Raipur, Through Shri Rajsliree Mahant Ramsunder Das, Gum Shri Late Mahant Vaishnavdas. VE R SU S :- ^. Basant Kumar Sahu, aged 55 years, ^ resident ofNear Station, Village Abhanpur, District Raipur (C.G.), 2. State ofChhatttisgarh, Through Collector ,9^.^t^> Raipur, District Raipur (Chhattisgarh). APPEAL UNDER SECTIONlOO OF CODE OF CIVIL PROCEDURE RESPONDENTS NTS, ):^Tili(- ^F,1.^; ?,^ ^ HIGH COURT OP CHHATTISGARH. BILASPUR 8ECOND APPEAL N0.122/2006 Shri Balaji Swami Vs. Basant Kumar Sahii aad anofher -1t1 ORDBR ^ ^it'6 Postfor 20.06.2006 Sd/- Sunil Kumar Sinha Judge 15 HIGH COURT OF CHHATTI8GARH. BILA8PUR 8ECOND APPBAL N0.122/2006 Shri Balaji Swaoii Vs. Basaat Kuniar Sahu aad aiiofher Appeayaiice: Shri Paakaj Agrawal, counsel for fhe AppeUaat. ORDER (20.6.2006) SUNIL KUMAR SINHA. J This is fhe plaiatiffs second appeal, filed under section 100 of the Code of CivU Procedure agamst fhe judgraent and decree dated 31.01.2006 passed ia Civil Appeal No.34-A/2005 by tlie Distdct Jiidge, Raipzir (C.G) arisiiig out ofJiidgment and decree dated 11.7.2005 passed in CivU Smt No.2-A/2005 by the 8A Civil Jiidge, Class-I, Raipur. The plamttfflost ia both the courts. (2) The brief facts are fhat the plaintifF, appeUaiit hereia, is a Registered PubUc Trust which has certam landed property ia viUage Abhanpur P.C.No.132, Distt. Raipiir. The plaint allegations are that in the month of Feb. 1995, 840 Sq.Ft. ofland out ofKhasra No.499/42 was encroached upon by the defendaat, respondent no. 1 herem, who raised constniction of a house and Badi on the said plot. This gave rise to a cause of action to fhe plamtlff to file fhe suit for vacaat possession of the land after renioviag superstructLire raised iipon it. The plaintiff also claimed xaesne profit of Rs.600/- aad it also clamied futiire niesne profit@ Rs.20/- per day froia fhe date of iastitiition oftiie snit tUl recoveiy of possession. The defendant no. 1 filed his written statement of denial. He pleaded that he has not encroached upon aoiy portion offhe suit laad. He also raised fhe ground that fhe suit is not filed by the competent person alongwifh fhe groiinds ofvalziation etc. \e ^-z- (3) The leamed trial judge franied various issues ia fhis case aad after recordiag evidence came to conclusion that the plaiatfcfiT could not estabUsh that defendaiit no. 1 has encroached upon 840 sq.fil:. of suit land belongiag to the plaiatiff. The suit was dismissed on tihds ground. This judgment aad decree passed by fhe trial court was challenged in appeal. The appeUate Court also held that fhe plaiatiff could not prove his case by sufiScient evidence to hold fhat any portion of suit laad was encroached by defendant no. 1 and ultixaately the appeal was also disniissed. It is agaiast fhis judgmeat and decree passed by fhe lower appeUate Court, fhis second appeal has been filed beforc this court. (4) Learaed cousel for the appellant argued that tiie fiiidiag in relation to fhe factttm of encroachiaent is not ia accoidaiice wifh law aiid the sarne is perverse on the face of rccord. (5) I have gone fhrough fhe records of fhe tovo courts below. To prove his case, the plamtiff has adduced evidence of one Dhandeudra Sahu (P.W.2) who stated fhat defendant no.l had encroached upon 840 sq.ft. of laa^d belonging to fhe plamtiff. Another witaess naraely Prabhii Rain (P.W. 1) who is the General Power ofAttomey ofthe plamtiff also stated ia fhe same fashion. Only these two witnesses have been examiaed by fhe plamtiff to prove its case. It is pertment to note fhat no documentary evidence to estabUsh fhe factuni of encroachinent has been brought on rccord aad a vague and general oial evidence of above two witaesses have only been adduced. In the opinion of ffcds Court, fhe trial Court as also fhe first appeUate court has righfty held that fhe plaintiffcould not estabUsh that defendant no. 1 has encroached upon aay portion of fhe suit laad belonguig to it. In fact, this is a case of non-discharge of buiden by ftie plamtiff. There appears to be no perversity ia the concurrent fmdiiig recorded by the two courts below. (6) No substantial question of law iavolves for consideration ia fhis appeal. The appeal has no merits aad the same is; dismissed at fhe niotion stage itself. Sd/- Sunil Kumar Sinha Judge