Durg, Chhattisgarh v. 1
Case Details
1 2025:CGHC:23131 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 643 of 2018 Fakhruddin Ansari @ Fazal S/o Late Hazi Ali Mohammad Aged About 38 Years R/o Lucky Auto And Property Advisor, Shop No. 18/7, Dakshin Gangotri, G.E. Road, Supela, Bhilai Tahsil And District Durg Chhattisgarh. (Defendant No. 1), District : Durg, Chhattisgarh ... Appellant/Defendant No.1 versus 1.Smt. Uma Dewangan W/o Shri Umesh Dewangan Aged About 32 Years R/o Qtr. No. 721, Dewangan Mohalla, Ward No. 04, Sanjay Nagar, Supela, Bhilai, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 2.State Of Chhattisgarh Through District Collector, Durg Chhattisgarh.
Legal Reasoning
(Plaintiff), District : Durg, Chhattisgarh ... Respondent/plaintiff For Appellant For Respondent(s) : :
Legal Reasoning
Mr. P.K. Patel, Advocate Mr. Manish Upadhyay, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.07.01 10:43:33 +0530 2 11/06/2025 1. This is defendant No.1 first appeal under Section 96 of the Civil Procedure Code, 1908. The defendant No.1 has preferred this appeal being aggrieved with judgment and decree dated 10.09.2018 passed by Sixth Additional District Judge, Durg, District Durg (CG) in Civil Suit No. 36211-A/2013 by which the trial Court has allowed the suit filed by the plaintiff by recording its finding that the plaintiff is the title holder of land situated at P.H. No. 14, Tahsil and District Durg old khasra No. 284/1, new Khasra No.1879/5 area 2400 Sq. feet (hereinafter referred to suit property) and the defendant has illegally enchroched the land towards 60 feet from north to south and 8 feet from east to west and accordingly directed for grant of vacant possession of the suit property. 2. The parties have been described as per description of Civil Suit No. 36211-A/2013. 3. Brief facts reflected from the record are that the plaintiff has filed the suit for declaration and possession of the suit property mainly contending that she has purchased the suit property through registered sale deed from P.N. Chandrashekar and since then she is in possession of the suit property. It is also case of the plaintiff that the defendant No.1 has encroached the land measuring 60 feet from north to south and 8 feet from east to west, total 480 sq feet and has been enchroched and illegal construction has been carried out over it. Being aggrieved with the 3 conduct of the defendant No.1, the plaintiff has filed the application before Tahsildar for possession wherein Tahsildar has stayed the construction over suit property but the same has not been followed which has necessitated the plaintiff to file the suit for claiming relief of possession, permanent injunction and restraining the defendant No.1 from interfering into the suit property. 4. The suit was initially filed before Civil Judge Class-1 Durg, looking to the valuation, the case was transferred and registered before Six Additional District Judge, Durg. 5. The defendant No.1 has filed the written statement denying the allegation made in the plaint contending that he has purchased the property bearing khasra No. 284/272, new khasra No. 2544, plot No. 25 through registered sale deed on 1.03.2005 in which he has constructed boundary wall with permission of the Corporation. It is also case of the defendant No.1 that he has constructed wall on plot No. 25 and 26 which is land of P.N. Chandrashekharan and he has not encroached on the plot No. 25 by doing construction. It has also been contended that both the khasra numbers are different, as such no question of encroachment has arisen and would pray for dismissal of the suit. 6. The plaintiff to prove her case has examined herself as PW-1, exhibited document i.e. registered sale deed (Ex.P-1 to Ex.P-6), report lodged to police station (Ex. P-7 and Ex.P-9), copy of mutation registration (Ex.P- 10 and Ex. P-11), Chakbandi map (Ex.P-12 and Ex.P-13), Khasra 4 Panchasala (Ex.P-14 and Ex.P-17), copy of mutation register (Ex.P-18), Khasra Panchasala (Ex.P-19 and Ex.P-20), list of re-numbering (Ex.P- 21), Public Information (Ex.P-22), revenue order sheet (Ex.P-23), application (Ex.P-24), Rin Pustika (Ex.P-25), application (Ex.P-26), kashra (Ex.P-27to Ex.P-29), re-numbring list (Ex.P-30), re-numbring list (Ex.P-31), Khasra No. (Ex.P-32), order dated 16.01.09 (Ex.P-33), application dated 31.12.2008 (Ex.P-34 and 35), application dated 09.03.2012 (Ex.P-36), statement (Ex.P-37), copy of order 18 Rule 4 CPC (Ex.P-38), copy of order dated 26.12.2012 (Ex.P-39), copy of order 39 Rule 2(A) (Ex.P-40 and 41), copy of order 18 Rule 4 CPC (Ex.P-42), report (Ex.P-43), report (Ex.P-44), receipt dated 19.01.2009 (Ex. P-45), application under Section 12 (Ex.P-46), reply (Ex.P-47), Order under 18 Rule 4 CPC (Ex.P-48), map (Ex.P-49), report (Ex.P-50), order dated 04.03.2013 (Ex.P-51), report (Ex.P-52), khasra (Ex.P-53 to Ex.P-63), statement (Ex.P-64). 7. The plaintiff in her examination in chief by way of an affidavit filed under Section 18 Rule 4 CPC has reiterated the stand taken in her plaint. This witness was extensively cross examined by the defendant wherein she has stated that when she verified the suit property then the defendant has objected to it. This witness has also stated that she has done demarcation in the year 2008 and she has also stated that she is not aware of the details of the plot number of defendant No.1. She has also admitted in the cross-examination that all the documents which she has 5 filed pertaining to khasra No. 1879/5 belonged to the plaintiff. She has also stated that before demarcation defendant No.1 has encroached 480 sq. feet lands and she has objected it. She has also moved an application before Tahsildar thereafter she has filed the suit. 8. The plaintiff has examined Umesh Dewangan who has supported the case of the plaintiff and has admitted that plot No. 26 belonged to Fakhruddin Ansari wherein he has constructed the house. He has also stated that in the east direction 40x 60 feet plot is, plot No. 25 but he has denied that plot No. 25 also belonged to Fakhuddin Ansari. He has admitted that plot No. 24 and 25 belonged to his wife. He has denied that the land which is encroached by the defendant No.1 owned by defendant No.1. He has also examined Banshiram who has constructed the wall but nothing has been placed on record in support of his submission. 9. Defendant No. 1 has been examined himself as DW-1 who has exhibited document ExD-1 to ExD-8 and has been examined by way of an affidavit as provided under Order 18 Rule 4 CPC. This witness was extensively cross-examined by the plaintiff wherein he has also stated that he has not produced any revenue record and lay out also. He has also admitted in the valuation report Ex.D-8 name of plaintiff Uma Devi has been mentioned and land bearing khasra No. 1879/5 area 2400 sq. feet situated at Kohka has been mentioned in the name of plaintiff. He has also stated that he is not aware whether Revenue Inspector has 6 mentioned the name of the plaintiff in the property situated at Vivekanand, Kohka. He has admitted that in the Ex.P-41 at the time of demarcation his presence was marked but he has not challenged the validity of the said document before the Court of law. He has also admitted that in the sale deed Ex.D-1 map of khasra No.2544 has been mentioned. He has also admitted that in the Ex.P-13 property purchased by the defendant No.1 and the property purchased by the plaintiff both were situated at different places. He has also admitted that details of khasra No. 1879 have not been attached with the plaint. He has also admitted that he has not filed any counter claim against the plaintiff. 10. The defendant No.1 has examined Junai Ahmad (DW-2) in his support wherein this witness has admitted that the plaintiff has filed the application before Tahsildar against the defendant. He has also admitted that demarcation of the suit property was done before him at that time both plaintiff as well as defendant were present there. He has also admitted that the plaintiff has inspected the place and this fact is known to him. The trial Court on the basis of evidence, material on record has decreed the suit. Being aggrieved with the judgment and decree passed by the trial Court, the plaintiff has filed the first appeal before this Court. 11. Learned counsel for the appellant would submit that the finding recorded by the trial Court suffers from perversity, illegality and has relied upon the demarcation report which has been recorded in absence of the appellant therefore, the trial Court should have not taken into 7 consideration the same. Thus he would submit that the trial Court has passed the judgment and decree on perverse finding which deserves to be set aside and would pray for allowing the appeal. 12. Per contra, learned counsel for respondent would submit that the trial court on the basis of material, evidence on record has passed the judgment and decree which does not suffer from perversity or illegality. He would further submit that the demarcation report which has been done in presence of plaintiff and defendant No.1. He would further submit that from perusal of the demarcation report it is quite vivid that defendant No.1 has encroached the suit property measuring 60 feet from north to south and 8 feet from east to west, total 480 sq feet. Thus the findings are legal, justified and would pray for dismissal of the appeal. 13. I have heard learned counsel for the parties and perused the record. 14. From the above stated facts and circumstances of the case and the finding recorded by the trial Court reliance of the demarcation report submitted by the plaintiff cannot be said to suffer from perversity as the learned trial court while deciding issue No. 2 whether defendant has encroached the land of the plaintiff measuring 60 feet from north to south and 8 feet from east to west, total 480 sq feet has taken into consideration the material placed on record and has recorded its finding that the plaintiff has dug the suit property bearing khasra No. 284/1 new khasra No. 1 1879/5 area 2400 sq feet which has been recorded in the 8 name of the plaintiff. The trial Court has also recorded its finding even the demarcation report Ex.P-24 submitted by the plaintiff wherein presence of defendant No.1 is not in dispute, is not subject to challenge by defendant No. 1 before any forum. The trial court has rightly taken into consideration that the demarcation and the evidence of the plaintiff witnesses who have in categorically terms have stated that the defendant No.1 has encroached the land measuring 60 feet from north to south and 8 feet from east to west, total 480 sq feet, thus the finding is based on appreciation of evidence and material on record which cannot be said to sufferer from perversity or illegality warranting interference by this Court. 15. Learned trial Court while allowing the suit has also examined whether the suit has been properly valued or not. The trial Court has recorded its finding that the suit property was purchased by the plaintiff in the year 2000 and the suit was filed in the year 2008 after valuating the suit to the tune of Rs 3,36,000/- and has paid court fees to the tune of Rs. 40,370/- whereas as per guideline prescribed by the State government it should be Rs. 41,120/-. As such, the plaintiff has deposited less Rs. 750/- therefore, the trial Court has directed the plaintiff to deposit Rs. 750/- to fulfill deficit court fees. Learned trial Court also recorded its finding that the plaintiff has mentioned the market value of suit property Rs. 700 per sq feet and accordingly court fees has been deposited whereas the defendant No. 1 has contended that the market value of the suit property 9 is Rs. 3000/- sq feet but has not produced any cogent material before the trial Court to prove his contention. Accordingly, the trila Court has decided issue No. 5 which cannot be said to suffer from perversity or illegality warranting interference by this Court. Accordingly, the appeal is liable to be dismissed and it is dismissed. 16. Interim order passed by this Court on 06.12.2018 is vacated. No order as to the cost. A decree be drawn up. Sd/- (Narendra Kumar Vyas) Judge santosh