16.7.2025 HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.86/2020 1 - Amar Prasad v. 1 - Sarang Singh Sidar S/o Late Injore Singh Aged A
Case Details
1 2025:CGHC:33158 AFR Judgment Reserved on :01.7.2025 Judgment Delivered on :16.7.2025 HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.86/2020 1 - Amar Prasad Aghariya S/o Maniram Aged About 50 Years Caste Gond, Occupation Agriculture And Labour, R/o Village Salihabhatha, Police Station And Tahsil Tamnar, District Raigarh Chhattisgarh. 2 - Bundram Rawat S/o Kriparam Aged About 55 Years Occupation Agriculture, R/o Village Salihabhatha, Police Station And Tahsil Tamnar, District Raigarh Chhattisgarh. ….Appellants/Defendants 1 & 2 versus 1 - Sarang Singh Sidar S/o Late Injore Singh Aged About 65 Years Caste Gond, Occupation Agriculture And Labour, R/o Village Salihabhatha, Police Station And Tahsil Tamnar, District Raigarh Chhattisgarh..(Plaintiff) 2 - Raviram Gond (Dead) Through Lrs. 2.1 - A. Smt. Chalmati Sidar Wd/o Late Raviram Gond Aged About 57 Years R/o Village Salihabhatha, Police Station And Tahsil Tamnar, District Raigarh Chhattisgarh. 2.2 - B. Damrudhar Sidar S/o Late Raviram Gond Aged About 27 Years R/o Village Salihabhatha, Police Station And Tahsil Tamnar, District Raigarh Chhattisgarh. 3 - State Of Chhattisgarh Through Collector, Raigarh, District Raigarh Chhattisgarh. ... Respondents For Appellants For Respondent No.1 For Respondents 2(a) & 2(b): None present, though served For Respondent No.3/State : Ms. Mukta Tripathi, Panel Lawyer : Mr. Pushpendra Kumar Patel, Advocate : Mr. Ravindra Sharma, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) C A V Judgment BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.07.16 14:27:08 +0530 2 1.
Legal Reasoning
This second appeal has been preferred by the appellants/defendants No.1 & 2 under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 07.01.2020 (Annexure-A/1) passed by Upper District Judge, Gharghoda, Distt. Raigarh (CG) in Civil Appeal No.25/2019, whereby it has set aside the judgment and decree dated 14.5.2019 (Annexure-A/2) passed by Additional Civil Judge to the Court of First Civil Judge Class-II, Gharghoda Distt. Raigarh (CG) in Civil Suit No.7A/2012 wherein, the civil suit filed by the plaintiff for declaration of absolute title and possession, to get possession of encroached land and cancellation of Order dated 17.8.2011 passed by Sub Divisional Officer (Revenue), Gharghoda and permanent injunction in respect of land mentioned in ‘Schedule A’ annexed with the plaint, has been rejected. (For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court) 2. Facts of the case, as projected by the plaintiff are that, the plaintiff filed civil suit stating inter alia that State Government has granted Patta in respect of land bearing Khasra No. 484, area 0.429 hectare land (for short ‘the suit land) situated in village Salihabhath, Patwari Halka No. 32, Police Station and tehsil-Tamnar, district Raigarh to the plaintiff for about 25-30 years ago and the plaintiff has been in possession and right over the said suit land since the said period. Defendant No. 1 Amar Prasad, defendant No. 2 Bundram and defendant No. 3 Raviram Gond (deceased) entered into the suit land illegally and unauthorisedly and started construction. The said construction was carried out by the defendants even after the plaintiff had forbidden them from doing the said work. To remove the possession made by the defendants on the suit land, the plaintiff filed a revenue case before Tehsildar, Tamnar. As per the Order of the Tahsildar, Tamnar, concerned Revenue Inspector and 3 Halka Patwari demarcated the disputed land in the presence of the parties and in the said demarcation, it was found that Amar Prasad had constructed a garden on 41x31 meters and a house on 26x30 meters on the suit land, and Bundram had constructed a garden on 24x32 meters and a house on 18x19 meters and Raviram Gond had constructed a house on 27x13 meters on the suit land. Thereafter, vide Order dated 12.10.2009 passed by the Tehsildar Tamnar, they were directed to remove their encroachment. Against said order of Tahsildar Tamnar, defendants No. 1 and 2 filed an appeal before Sub- Divisional Officer (Revenue), Gharghoda and vide order dated 17.08.2011, SDO (Revenue) set aside the order passed by Tehsildar Tamnar on the ground that the plaintiff has not presented the Patta of the land in question and has filed said application after five years. Against the said order, the plaintiff filed an appeal before the Commissioner, Bilaspur Division which is pending. Since the plaintiff is in possession of the suit land for last 25-30 years and his name has been recorded in the revenue records, hence, he filed civil suit for declaration of his absolute title and possession, to get possession of encroached land and cancellation of Order dated 17.8.2011 passed by Sub Divisional Officer (Revenue), Gharghoda and permanent injunction in respect of land mentioned in ‘Schedule A’ annexed with the plaint. 3. Defendants No.1 to 3 have jointly filed their written statement denying most of the allegations made in the plaint. It has been alleged that the State Government granted Patta to landless persons and the plaintiff has land in village Salihabhath, hence, he was not entitled to get Patta of the suit land. Defendants have been occupying the suit land since 1978 and it is clearly written in the order of the Tahsildar that defendants No.1 and 2 have been residing on the suit land for 20 years by constructing a house. Therefore, the 4 suit filed by the plaintiff is not maintainable and time barred too. The plaintiff has not proved his ownership of the suit land. The demarcation report and panchnama prepared by the Revenue Inspector regarding the suit land are doubtful, it was prepared in the absence of defendants. The defendants have also filed a counter-claim on the ground that the suit land has been in possession of defendants number 01 to 03 for about 30 years, therefore, on the basis of adverse possession, the defendants have acquired title of the suit land. Hence, they prayed that suit filed by the plaintiff on the above ground may be rejected. 4. The learned trial Court on the basis of pleading of both the parties, framed four issues, recorded the evidence adduced by both the parties and after considering the oral and documentary evidence and contention made by learned counsel for the parties, vide judgment and decree dated 14.5.2019 rejected the civil suit filed by the plaintiff holding therein that the plaintiff has failed to prove that he is the owner of the suit land and the defendants have encroached upon the suit land. 5. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff filed first appeal before Upper District Judge, Gharghoda, Distt. Raigarh, which has been allowed and decree has been granted in favour of the plaintiff, as has been stated in the preceding paragraphs. Hence, this appeal. 6. This appeal is admitted for hearing on the following substantial question of law:- Whether the lower Appellate Court was justified in reversing the finding of the trial Court by holding that the plaintiff is having title and interest over the suit land, therefore, he is entitled to get possession 5 from appellants/defendants No.1 & 2? 7.
Legal Reasoning
Learned counsel for the appellants/defendants 1 & 2 would submit that though vide Ex.-P/26, Patta of the suit land was granted to the plaintiff, but only on the basis of Patta, title cannot be granted to him as he was already having land and was not a land-less person. He would further submit that defendants No.1 & 2 are in possession on the piece and parcel of the suit land since 1978, therefore, they cannot be removed from said portion of the land. He further submits that the plaintiff had filed application under Section 250 of the Chhattisgarh Land Revenue Code, 1959 (for short ‘the Code 1959’), which was allowed by the Tahsildar vide Order dated 12.10.2009 (Ex.- P/7), but the same has been set aside by the Sub Divisional Officer (Revenue), Gharghoda vide Order dated 17.8.2011 (Ex-P/9) on the ground that defendants No.1 & 2 are in possession since 5 years prior to granting of Patta to the plaintiff. Thus, Sub Divisional Officer (Revenue), Gharghoda in the Order (Ex.-P/9) himself has held that defendants No.1 & 2 are in possession of respective piece of suit land, but the learned first appellate Court without considering that order in its true perspective has granted decree in favour of the plaintiff by reversing the reasoned order passed by the Sub Divisional Officer as well as the trial Court, hence, he prayed that the appeal may be allowed and impugned judgment and decree passed by the Upper District Judge, Gharghoda, Distt. Raigarh may be set aside. 8. Per contra, learned counsel for the plaintiff/respondent No.1 herein would submit that the suit land bearing Khasra No.484 area 0.429 hectare was granted to the plaintiff in the year 1986-87 on Patta and vide aforesaid Order, he was also granted Bhumiswami rights, therefore, the contention of learned counsel for the appellants/defendants No.1 & 2 that on the basis of Patta (Ex.-P/26), granting Bhumiswami right to the plaintiff by the first 6 appellate Court cannot be sustained, is misconceived. He would further submit that after granting Patta of the suit land in the year 1986-87, the plaintiff was in continuous possession, his name was also mutated in the revenue record. He further submits that though Order dated 12.10.2009 (Ex.- P/7) passed by Tahsildar, allowing the application filed by the plaintiff under Section 250 of the Code 1959 was set aside by SDO (Revenue), Gharghoda vide Order dated 17.8.2011 (Ex.-P/9), but it has been passed only on the ground that defendants are in possession for 5 years, but said finding of the SDO (Revenue) is baseless and illegal as no year has been specified in the said 5 year in the aforesaid order, whereas after granting Patta, the suit land was mutated in the name of the plaintiff and also recorded his possession in revenue records. He further submits that the defendants encroached upon said portion of the suit land in the year 2005, thereafter the plaintiff got demarcated the suit land in which vide demarcation report (Ex.-P/4 to P/6), the revenue authority reported that Bundram encroached 24x32 meter & 18 x 19 meter; Raviram Gond encroached 27x13 meter and Amar Prasad encroached 41x31 meter & 26x30 meter, as such demarcation report also shows that the defendants have encroached upon the suit land which has been considered by the first appellate Court in its true perspective. He also submits that Section 250-B of the Chhattisgarh Land Revenue Code, also fasten liability upon the revenue authorities that if the encroacher did not vacate the land, which has been allotted to a person (allottee) then such land shall be got vacated by the revenue authorities. But SDO (Revenue) vide impugned Order dated Ex-P/9 misinterpreted the aforesaid provision and allowed the appeal only by saying that application under Section 250 of the Code 1959 has not filed by the plaintiff within specified period. Learned counsel further submits that by the well reasoned order, the learned first 7 appellate Court has reversed the finding of the trial Court, which does not call for any interference by this Court, hence, this appeal may be dismissed. 9. State is a formal party in this appeal. 10. I have heard the learned counsel for the parties and perused the records of both the Courts below. 11. It is the claim of plaintiff Sarang Singh Sidar (PW-1) that suit land was allotted to him on Patta vide Ex-P/26 in the year 1986-87 and since then, he is in possession over it. This fact has also been supported by Khageshwar Paikra (PW-2) and Ramawatar Paikra (PW-3), who are resident of plaintiff’s village. 12. Ex-P/26 is certified copy of the Patta issued by the Naib Tahsildar, Gharghoda, in Revenue Case No.238/A-19/1986-87, by which ownership of the suit property was granted to the plaintiff. Ex-P/14 is certified copy of the Khasra Panchsala of the suit land for the year 2001-02 to 2004-05, which shows that the suit land is in the possession of the plaintiff. Ex-P/18 is certified copy of the Kisthbandi Khatoni of the suit land for the year 2013-14. Ex-P/20 is certified copy of Khasra Panchshala of the suit land for the year 2015-16. These revenue documents support deposition of the plaintiff and his witnesses that after allotment of the Patta/ownership right of the suit land, the same was recorded in the name of the plaintiff and he has remained in possession of the same after grant of Patta. 13. Defendants Amar Prasad (DW-1) and Bundram (DW-2) have deposed that since the plaintiff had other land in the village, therefore, he was not entitled to get Patta, but this contention cannot be sustained, as they are not entitled to decide the competency of the plaintiff to obtain said Patta. Further Patta Ex-P/26 was granted by the revenue authorities after initiation of due process of revenue case. Therefore, validity of Ex-P/26 cannot be doubted. 8 14. Vide Ex-P/26, Bhumiswami right was granted to the plaintiff and revenue documents also shows that the land was subsequently mutated in his name and possession of the same was also granted to him. As per deposition of defendant No.1 Amar Prasad and defendant No.2 Bundram, they are in possession over said portion of the suit land since 1978. Their statement has also been supported by Jeevan Patel (DW-3). In this regard, the defendants have filed certified copy of Order dated 17.8.2011 (Ex.-P/9) passed by SDO (Revenue), Gharghoda, Distt. Raigarh in Revenue Appeal No.10A/70/2009-10. Though vide that order SDO (Revenue) set aside the order dated 12.10.2009 (Ex-P/7) passed by Tahsildar, which is against the provisions of Section 250 of the Code 1959. 15. Plaintiff Sarang Singh (PW-1) has stated in his deposition that in the year 2006, defendant No.1 Amar Prasad and defendant No.2 Bundram encroached suit land, therefore, he filed a revenue case, in which suit land was demarcated by Tahsildar, Tamnar, Distt. Raigarh, thereafter demarcation report Ex.P/3 to Ex.P/6 were submitted by Revenue Inspector, Tamnar, wherein it was reported that defendant No.1 Amar Prasd has encroached 41 x 29 and constructed badi, encroached upon 26 x 30 and constructed house on it. Defendant Bundram also encroached upon 24 x 32 from the suit land and constructed badi and further encroached upon 18 x 19 and constructed house on it. Based on that, Tahsildar, Tamnar in Revenue Case No.4A/70/2006-07 passed Order dated 12.10.2009 (Ex-P/7) and directed the defendants to vacate the land. But in the appeal, vide Order Ex-P/9 dated 17.8.2011, SDO (Revenue), Gharghoda, Distt. Raigarh, set aside the order passed by Tahsildar, only because the plaintiff did not file Patta and he also did not file application within 5 years as provided in Section 250(1-a) of the CG Land Revenue Code, 1959 (for short ‘the Code 1959’). In the aforesaid 9 order, SDO (Revenue) has held that defendants are in possession over the said portion of the suit land for 20 years, but the defendants have failed to adduce any cogent evidence to prove the fact that they have been in possession of the suit land since 1978 or for 20 years prior to 2006. Setting aside Order dated 12.10.2009 of the Tahsildar (Ex-P/7) by SDO (Revenue) vide order dated Ex-P/9 is not only against the evidence available on record, rather it was also against the provision of Sections 250 & 250-B of the Code 1959 which reads thus:- 250. Reinstatement of Bhumiswami improperly dispossessed. - (1) For the purpose of this section and Section 250-A Bhumiswami shall include Government lessee. (1-a) If a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Bhoonmiswami to the use of which such person has ceased to be entitled under any provision of this Code, the Bhumiswami or his successor in interest may apply to the Tahsildar for restoration of the possession. (1-b) The Tahsildar shall on coming to know that a Bhumiswami has been dispossessed of his land otherwise than in due course of law, suo motu start proceedings under this section. (2) The Tahsildar shall, after making an enquiry into the respective claims of the parties, decide the application and when he orders the restoration of the possession to the Bhumiswami, put him in possession of the land. (2-a) The proceedings started under this section shall after receipt of reply from the other party, continue from day to day unless for reasons to be recorded in writing, a longer adjournment is considered necessary and in that case a copy of the order sheet containing the reasons for such adjournment shall be sent to the Collector. (3) The Tahsildar may at any stage of the enquiry pass an interim order for handing over the possession of the land to the 10 Bhumiswami, Government lessee, as the case may be, if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application or commencement of suo motu proceedings under this section. In such case the opposite party shall, if necessary, be ejected under orders of the Tahsildar. (4) When an interim order has been passed under sub- section (3) the opposite party may be required by the Tahsildar to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of land until the final order is passed by the Tahsildar. (5) If the person executing a bond is found to have entered into or taken possession of the land in contravention of the bond, the Tahsildar may forfeit the bond in whole or in part and may recover such amount as an arrear of land revenue. (6) If the order passed under sub-section (2) is in favour of the applicant the Tahsildar shall also award compensation to be paid to the applicant by the opposite party which shall be at the prorata rate of [one thousand rupees] per hectare per year. (7) The compensation awarded under this section shall be recoverable as an arrear of land revenue. (8) When an order has been passed under sub-section (2) for the restoration of the possession to the Bhumiswami the Tahsildar may require the opposite party to execute a bond for such sum as the Tahsildar may deem fit for abstaining from taking possession of the land in contravention of the order. (9) Where an order has been passed under sub-section (2) for the restoration of the possession of the Bhumiswami, the opposite party shall also be liable to fine which may extend to [ten thousand rupees] : Provided that it shall not be competent to the Tahsildar to impose a fine of amount exceeding [five thousand rupees] but if in any case he considers that circumstances of the case warrant imposition of a higher fine, he may refer the case to the Sub- Divisional Officer who shall, after giving the party concerned an 11 opportunity of being heard, pass such orders in respect of fine as he may deem fit. 250-B. Failure to vacate land in favour of allottee of land to be an offence. (1) If a person to whom land has been allotted in bhumiswami rights or as a Government lessee under a Patta granted to him in accordance with a scheme of distribution or disposal or allotment of land under executive powers of the State Government as may from time to time be adopted or sponsored by the State Government or any such scheme under any enactment for the time being in force and such person has not been able to take actual possession of the land so allotted to him, he may apply to the Tahsildar for putting him in actual possession of the land allotted to him under the Patta granted to him. (2) On receipt of the application, the Tahsildar shall by an order in writing, issue a direction- (i) to the person in possession of the land to vacate the same forthwith; or (ii) in the event of any person obstructing the taking over of possession or delivery of possession, to such person to remove such obstruction to enable delivery of possession, and on his vacating the land or removing the obstruction, deliver actual possession thereof to the bhumiswami or the Government lessee, as the case may be, entitled to hold the land under the Patta. (3)The Tahsildar may, if necessary, use such force including Police force as may be necessary to put the allottee in actual possession of the land. (4) If the person to whom direction is issued under sub- section (2) fails to comply with the direction, he shall be punishable with imprisonment for a term which may extend to three years and with fine or with both, and such non- compliance of direction is a continuing one, with further fine which may extend to one hundred rupees for everyday after the first during which the non-compliance is proved to have been persisted in. (5) The offence under this section shall be cognizable and non-bailable. Obje 12 16. Perusal of the aforesaid provision shows that, if a person is granted Bhumiswami right of the land by the Government on lease/Patta under any scheme, then it is also the duty of the officials of the State Government/ Tahsildar for putting the allotted person in actual possession of the land, to which the Patta is granted to him, else, granting Patta will amount to paper exercise only. In the instant case, as per the evidence available on record, after granting Patta/Bhumiswami right to the plaintiff vide Ex-P/26, he was also granted possession and suit land was mutated in his name in the revenue record. Subsequently, the defendants encroached said portion of the land which has also been reported by Revenue Inspector, Tamnar vide demarcation report Ex-P/3 to Ex-P/6, which was prepared in the presence of defendants as Ex.P/4 contains their signature, wherein it has been reported that defendants have encroached said portion of the suit land. Similar report has also been given by Patwari Vide Ex-P/15 to P/16. 17. The defendants have not adduced any evidence to prove their claim that they are in possession over the said portion of the suit land since 1978 or 20 years prior to 2006. Even otherwise, Bhumiswami right has been granted to the plaintiff over the suit land, as such, he has obtained legal right on it and thereby he is also entitled to get the possession and if he is dispossessed, then it is duty of revenue authorities to put him possession over the suit land as provided in Sections 250 & 250-B of the Code 1959. On the other side, defendants have no legal right at all over the suit land and even for the sake of argument, if it is supposed that, at some point of time, they possessed the suit land, then also they are not entitled in the eye of law to protect their illegal possession. 18. In view of the above discussion, I do not find any infirmity or illegality in 13 the impugned judgment passed by the learned first appellate Court, hence, the appeal is liable to be dismissed, as such question of law is answered accordingly, i.e. in favour of the plaintiff/respondent and against defendants/appellants 19.
Decision
In the result, the appeal fails and the same is accordingly dismissed. 20. A decree be drawn accordingly. 21. The record of the trial Court as well as the first appellate Court be returned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Bini