Wife of Shri Bisambher Sahu v. A. Mannu Ram

Phagtw Ra^ Son of Shri Punau Gond, aged about 50 years; ......%^' ^c€^>f^y' ^ Both resident of Village Amgaon, Post Gharawat, Tahsil Nagri, District Dhamtari (C.G.). SECOND APPEAL UNDER SECTION 100 OF THE CODE OF ^^"' CIVIL PROCEDURE. 1908 HIGH COURT OF CHHATTISGARH ATJBILASPUR SECOND APPEAL No. 31572006 Kalabai Versus Mannu Ram SB another Post for Judgment on ^ -10-2006 Sd/- Dhirendra Mishra Judge 11 N ihtii.t-l .,,,^: HIGHCOIIRTOFCHHATnSGARHATBILASPUR SECOND APPEAL No. 315/2006 ^ Kalabai Versus Mannu Ram. & another Present: Shri P.P. Sahu, Adv. for the appellant JUDGMENT Per Dhirendra Mishra, J. Heard on aduiission.

2. The appeUant-plaintiff has preferred fhis appeal under Section 100 of the Code of CivU Procediire being aggrieved by the judgaient and decree dated 28-4-2006 passed by fhe Additional District Judge, Dhamtari ia Civil Appeal No. 138- A/2004 by which, fhe leamed appellate Cburt allowing the appeal preferred by (he respondents-defendants against the judgment and decree dated 27-2-'2003 passed in Civil Suit No. 184-A/1998 bythe 2nd Civil Judge Class-I, Dhamtari has dismissed fhe suit of the appeUant-plaintiff which was decreed by the CivU Judge. (Hereinafter the parties shaU be referred to as per fheir description in the judgment of the tdal Court)

3. Briefly stated the facts of the case are fhat plaintiff Kalabai filed a suit for possession of fhe suit land with the averments that she is the owner of Khasra No. 180/1 area

2.82/1.141 heqtare and KhasraNo. 181/1 area 0.18/0.073 ..^. hectare, situated in village Amgaon. The defendant No. 1 Mannuram and defendant No. 2 Faganuram have encroached upon 2 ^ decimal area each over fhe above land and have constructed tlieir house. The case of the defendants before the trial Court was that they have erected their house over the Govemment land and the land has been described as Bade Jhad KaJangal oiid tliie Graiu Panchayat has allotted this land to the defendants for using, The trial Court decreed the siiit by recorduig a finding ttiat fhe defendants No. 1 and 2 each have forcibly encroached upon the land of the plaintiff bearing Khasra No. 180/1 newKhasraNo. 300 area2.82 acre adineasuring 0.85 x 35 Kadi and 43 x 85 Kadi and have undertaken construction and the plaintiff is entiUed to obtain vacant possession after demolition of the consti-uction and the siiit laad Khasra No. 300 has been wrongly described as KhasraNo. 286/1.

4. The leamed Additional District Judge has set aside the judgment and decree ofthe trial Court and dismissed the suit of ttie plainttff while recording the findmgs inter alia that both the parties have stick to their statements in fhe plauit aad written statement, where the witnesses of the plaintifi' have stated that the land in question belongs to plaintifi" Kalabai and fhe defendants have encroached upon 2 Vs decimal of land each and have constructed thetr house, On the other hand, the witness ofthe defendants has stated that . ^. I1..' 1 :u' 3 have undertaken the construction on the Government land as the same was allotted to them by the Gram Panchayat aiid the land iil question has been described as bade Jhad Ka Jangal in the revenue record aad to subsfantiate their pleadings, they have flled documents of Ex. D-1 arid Ex. D-2 wliich show that the Gram. Panchayat has allotted fhis piece of laiid to the laadless persons and the sanie is recorded in the revenue papers as Bade Jhad Ka Jangatand thus fhe dispute bet^veen the pm'ties, in fact^ is that of demarcatiou and the same could be resolved by Lmdeitakmg demarcation as per Section 129 ofthe C.G. Land Revenue Code, aiid then only, the claims of respective parties could be ascertained. However, the trial Court relying upon ttle report of Ex. P-1 has arrived at a conclusion fhat the defendants have eucroached upon the larid in questk)u.

5. After careful scrutiny of the docuinent of Ex, P-1, fhe leamed appellate court has observed that a change has taken place after settiement in ttie position of the land and fhe report of Ex. P-1 has been submitted for the purposes of correctlon of the boundaries described in fhe raap bf new Khasra No. 300 as fhe map wrongly depicts the boundaries of Khasra Nos. 300 and 302 and which does not correspond to the exisfing possessions of the farmers. The appellate Court has set aside the judgiuent and decree of the trial Court which is based on docunient of Ex. P-1 on the ground firstiy -,^ that fhe report itself is not clear and secondly the Revenue Inspector who has submitted the report has not been exammed as a witoaess and thereby ttie defendants have been deprived oftheir valuable right of cross-examining the author oftheEx.P-landas such, the Court below was notjustilied in basing the report ofEx. P-1 against the defendants and on these findings, the appeUate court has set aside the judgment and decree of the trial Court and dismissed the suit of the plainttff with a finding fhat fhe plainttff has failed to prove that fhe defendants have encroached upon the land and therefore, the decree ofpossession cannot be granted in her favour. .!

6. Leamed counsel for the appellant submits that there was no dispute with Tespect to fhe demarcation of thie disputed land between the parties. The only dispute between the parUes was that wheftier the land which was allotted by the Gram Panchayat to the defendants was, in fact, Govemment land described as bade Jhad Ka Jangal in fhe revenue record or it was the land belonging to Bhumiswami right of ttie plaintiff. He submits that the Panchayat persons taking advantage of en-oneous map aUotfced tlie land to plaintiff showtng the same to be a Government land however, as per directions of the TehsUdar, the Revenue tnspector conducted spot enquiry and submitted his report of Ex. P-1 and according to the report of Ex. P-1, fhe map of fhe .^ disputed land stands altered by the Tehsildar and the same has attained j5nali1y as the defendants or fhe GIBIU Panchayat did not chaUenge the amendment in thLe map and t^erefore, fhe leamed appellate Court has wrongly set aside the well reasoned judgment of the trial Court solely on fhe ground that the Revenue Inspector who has submitted the report ofEx. P-1 has not been exammed.The above fmding is contrary to law and faets and therefore, following substantial questions of law arise for adjudication ofthe appeal:- A. Wliether^ the iindings of the learned Court below in holding that the nature dispute is with regard to the boundaries of the land are perverse in the facts and circunistances of the case ? B, Whether, the learued Court below justtfied in disbelieymg tlie report submitted by fhe Revenue Inspector in revenue proceedings only on the ground (hat the concemed Revenue Inspector has not been examined by the leamed Trial Couit ignoring the facts conclusion revenue proceeding was for correction of fhe certain maps of village Amgaon on the basis of report Ex. P-1 and the saine has not been challenged by the respondent ?

7. I have heard fhe leamed counsel for the appellant. I have perused the unpugned judgment and decree passed by the Additional District Judge, judgment of the trial Court and the material available on record. 6

8. From perusal of fhe judgment of the trial court, it is evident that the suit for possession has been decreed solely relying upon the document of Ex. P-1 whereby correction m the map pertaining to Khasra No. 300 and 302 has been recoDimended. From a perusal of this report, fhe finding of the appeUate Court the report is not clear and ambiguous is estabUshed and in the aforesaid circumstances, the finding of fhe appellate Court fhat without exainining ttie Revenuelnspect.or^ no credence could be given to the report of Ex. P-1 cannot be faulted. Admittedly, the dispute pertatns to location of the land and as such the plaintiff in order to succeed in her suit was required to adduce evidence regarding encroachment of defendants and the appellate ! ii'L'l :i i! Court by the irapugied judgnient has rightly held that ttie ^ plaintiff has failed to prove fhe encroachment of defendants over her land. The above flnding is based on proper appreciation of oral and docuraentary evidence available on record.

9. Thus, no substantial questions of law as proposed above by the appellant arise for adjudication of this second appeal and the appeal preferred by the appellant is devoid of nierit and substance and the same deserves to be dismissed aiid is dismissed at the admission stage itself Sd/- Dhirendra Mishra Judge :,.^. ,^.,.^^^N|yte?^^^