2020:CGHC:14714 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 100 of 2010 1. Laxman S/o Samaru, Aged about 58 years. 2. Bukhinbai Wd/o Late Dileshwar, Aged about 58 years. 3. Dinesh S/o Late Dileshwar, Aged about 26 years. All 1 to 3 R/o Jaistambhgali, Kududand, Bilaspur,Tahsil and District Bilaspur, Chhattisgarh. ---Appellants Versus 1. Smt. Ganeshiya Bai, Aged about 40 years, D/o LateSaheshram, R/o In front of Jaistambh, Bilaspur,Permanent R/o Village Pali, Post Muru, TahsilThakathpur, District Bilaspur, Chhattisgarh. 2. State of Chhattisgarh, Through District Collector,Bilaspur. ---- Respondents For Appellants : Shri Sanjay Patel, Advocate For R1 : Shri Shalvik Tiwari and Ms. Prathna Khandelwal, Advocates For State : Shri K.L. Sahu, Dy. Govt. Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 01.08.2025 1. This appeal has been preferred by the defendants under Section KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.09.17 10:57:21 +0530 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 26.02.2010 passed by the learned Ninth Additional District Judge (FTC), Bilaspur District Bilaspur (C.G.) in Civil Appeal No.4-A/2010, whereby the first appellate Court has allowed the appeal filed by the respondent/plaintiff and set aside the judgment and decree dated 30.09.2009 passed by the Second Civil Judge, Class-I, Bilaspur, District – Bilaspur (C.G.) in Civil Suit No. 313-A/2005 whereby the suit filed by the plaintiff was dismissed. 2. The parties to this appeal shall be referred to hereinafter as per their description in the civil suit. 3. This appeal was admitted by this Court on 23.07.2013 on the following substantial questions of law:- “Whether the lower appellate Court was justified in decreeing the suit without ascertaining identity of the land by appointing Commissioner for local investigation under Order 26 Rule 9 of the Code of Civil Procedure, 1908?” 4. Brief facts of the case are that Plaintiffs filed a suit for injunction simpliciter against the defendants No. 1 to 3 contending that a piece of land measuring 1328 sq. ft. in Khasra No.-143 in Mauja Kududanda Bilaspur, R.N.M. Bilaspur, District Bilaspur is inhabited land, on which a 2 room mudhouse measuring approximately 300 sq. ft. has been built (hereinafter referred to as ‘suit property’) on which the plaintiff has been in possession for the last 50 years since her father's lifetime. Since the plaintiff got married in village Pali, she has been living there with her husband. The plaintiff's father died in the year 1997 and her mother died in the year 1998.The suit house is registered in the name of her father, due to which the plaintiff is paying the property tax in the Municipal Corporation Office, Bilaspur and is enjoying peaceful possession. After one house of the plaintiff, there is a house of defendant No-1, who, with the help of defendants No.2 and No.3 wants to forcibly construct a room on the western side of the suit house. When the plaintiff refused to get the construction done, defendants No. 1 and No. 3 abused her and threatened to kill her which necessitated her to file civil suit. 5. Defendants No. 1 to 3 filed their written statement denying the allegations of the plaintiff contended that the suit land is registered as government land therefore, she is not entitled to file suit. It has been further contended that the plaintiff was never in possession as she went to her in-laws' house after marriage. Defendant No. 2 is constructing on the land under his possession, on which the plaintiff is interfering without authority, therefore, would pray for dismissal of the suit. 6. Learned trial Court on the basis of the pleadings of both the parties, framed as many as 6 issues. Issue No. 1 and 3 are important which are extracted below :- Issue No. 1 : Whether the plaintiff is in possession of the suit property 10X40 Sqft ? Issue No. 3 : Whether suit property is the ancestral property of Defendants No. 1 to 3? 7. To substantiate her contention the plaintiff examined herself as PW1, Ashok Bai as PW2, Ravindra Chaturvedi as PW3, Rajeshwar Rao Pawar as PW4, Basant Pandey as PW5 and exhibited documents namely Ex.P1 map, Ex.P2 Khasra Panchsala, Ex.P3 Mutation Form, Ex.P4 to 6 Tax Bills from Municipal Council, Ex.P7 Receipt of tax payment, Ex.P8 property tax payment sheet, Ex.P9 Information under RTI. The defendants examined Defendant No. 2 as DW1, Defendant No. 1 as DW2, Punnilal Pahadi as DW3, Sadashiv Pahadi as DW4, Prabhudayal as DW5 and did not exhibit any document. 8. Upon appreciation of the oral and documentary evidence adduced by the parties, learned trial Court dismissed the suit and decided issue No. 1 and 2 against the plaintiff and issue No. 3 against the defendants and its paragraph 13 and 14 recorded its finding that the plaintiff is unable to prove that she is in possession of the suit property for the last 50 years. 9. Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiff preferred first appeal under Section 96 of Civil Procedure Code before the Learned Additional District Judge, Bilaspur contending that since issue No. 3 has been decided against the defendants therefore, it is incumbent upon the defendants to establish that they are in possession of the suit property for the last 30 years? Learned first Appellate Court allowed the appeal and reversed the finding of the trial Court. Learned first Appellate Court recorded its finding that the plaintiff is in possession of the suit property from year 1997-98 and restrained the defendants from the peaceful possession of the plaintiff. 10. Being aggrieved with the judgment and decree passed by the learned first Appellate Court, the defendants have preferred Second Appeal before this Court and this Court admitted the appeal on the substantial question of law as aforesaid. 11. Learned counsel for the appellants would submit that learned first appellate Court has committed illegality in not issuing any writ of commission for identification of the suit property. The identification of the suit property is very much required therefore, would pray for setting aside the order of the first appellate Court and would pray for restoration of judgment and decree passed by the trial Court. 12. Learned counsel for the respondent No.1 would submit that the learned first appellate Court has rightly set aside the judgment and decree passed by the learned trial Court therefore, it does not call for any interference by this Court. Learned first appellate Court in its categorical terms has analysed the identity of the suit land in paragraph No.16 of the judgment. The appellants have also not moved application under Order 26 Rule 9 of the CPC , therefore, there is no occasion for the learned first appellate Court to go for appointment of commissioner for local investigation and would pray for dismissal of the present appeal. 13. I have heard learned counsel for the parties and perused the record. 14. From the records, it is quite vivid that no dispute with regard to identification of the suit property has been taken by the defendants but only they have simply denied that the plaintiff is in possession of the suit land for the last 50 years. Even in the written statement filed before the trial Court there is no specific pleading for demarcation of land or any application for demarcation has been moved by the defendants before the learned trial Court for identification of the suit property. Learned first appellate Court has categorically analysed the aspect of identification of suit property, thereafter, recorded its finding that from the perusal of Schedule A it is quite vivid that there is open land in the north direction of the land of the plaintiff, and thereafter, land of Khorbahara Suryawanshi is situated. Learned first appellant Court in paragraph 15 has categorically held that the plaintiff in its plaint as well as in the Ex.P/9 which is information received under the Right to Information Act from the Municipal Council it has been categorically mentioned that there is a common path and in the north direction open land exists, therefore, there is no contradiction with regard to identification of land. This finding of the learned first appellant Court cannot be said to suffer from perversity, illegality which warrants interference by this Court and substantial question of law framed by this Court is deserved to answered against the appellants and in favour of the respondents. Consequently, the appeal deserves to be dismissed and accordingly it is dismissed 15. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge kishore