2025:CGHC:28086 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 536 of 2018 Prabhakar Kohale, S/o Shri Chaitram Kohale, Aged About 64 Years R/o Village Dhangardeepa, Post Tangarghat, Baikunthpur, Raigarh Tahsil And District Raigarh, Civil And Revenue District Raigarh, Chhattisgarh.........................Defendant No.1. --- Appellant versus Mokar Prasad Pandey (Since Dead) Through Lrs. 1- Manoranjan Prasad Pandey S/o Late Mokar Prasad Pandey Aged About 46 Years R/o Village Baikunthpur Raigarh Tahsil And District Raigarh, Chhattisgarh. 2 - State Of Chhattisgarh Through Collector, Raigarh District Raigarh, Chhattisgarh. 3 - Selu Ram S/o Ghasiram Yadav Aged About 43 Years R/o Mauhapali Chauk, Kharsia, Tahsil Kharsia, District Raigarh, Chhattisgarh. Trilochan Dewangan (Since Dead) Through Lrs 4- Usha Dewangan W/o Late Trilochan Dewangan Aged About 47 Years R/o Village Dhangardipa, Baikunthpur, Ragarh Tahsil And District Raigarh, Chhattisgarh. 5 - Mukesh Dewangan S/o Late Trilochan Dewangan Aged About 29 Years R/o Village Dhangardipa, Baikuthpur. Raigarh Tahsil And District Raigarh, Chhattisgarh. 6 - Hemand Dewangan S/o Late Trilochan Dewangan Aged About 27 Years R/o Village Dhangardipa, Baikunthpur , Raigarh Tahsil And District Raigarh, Chhattisgarh. --- Respondent(s) and SA No. 276 of 2018 Trilochan Dewangan (Died) Through his legal representative (A) Usha Dewangan, W/o Late Trilochan Dewangan Aged About 47 Years. (B) Mukesh Dewangan, S/o Late Trilochan Dewangan Aged About 29 Years. (C) Hemant Dewangan, S/o Late Trilochan Dewangan Aged About 27 Years. All are R/o Village Dhangardipa, Baikunthpur, Raigarh, Tah. And District Raigarh, Chhattisgarh (Defendants) ---Appellant(s) ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.07.30 13:08:23 +0530 Versus 1 - Mokar Prasad Pandey (Died) Through Lrs. Manoranjan Prasad Pandey S/o Late Mokar Prasad Pandey Aged About 46 Years Occupation Laborer, R/o Baikunthpur, Raigarh, Tahsil And District Raigarh, Chhattisgarh. 2 - State of Chhattisgarh Through Collector, District Raigarh, Chhattisgarh. 3 – Seluram, S/o Ghasiram Yadav Aged About 42 Years Occupation Laborer, R/o Mahuapali Chowk, Kharsia, District Raigarh, Chhattisgarh (Plaintiffs). 4 – Prabhakar Kohle, S/o Chaitram Kohle Aged About 64 Years Occupation Retired, R/o Village Dhangardipa, Baikunthpur, Raigarh, Tahsil And District Raigarh, Chhattisgarh (Defendant). --- Respondent(s) For Appellant (in SA No. 536/2018 ) : Mr. Manoj Kumar Sinha, Advocate. For Appellants (in SA No. 276/2018) : Mr. Rajendra Tripathi, Advocate. For Resp. No. 1 (in SA No. 276 of 2018) : Mr. Amit Kumar, Advocate. For State : Mr. Kishan Lal Sahu, Dy. Govt. Advocate. Hon'ble Shri Justice Narendra Kumar Vyas JUDGMENT ON BOARD 26.06.2025 1. Since both the second appeals arise out of common judgment and decree passed by the trial Court, common question of law and facts are involved in both the appeals, as such, they heard analogously and are being disposed of by this common order. 2. These second appeals have been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 21.03.2018 passed by Third Additional District Judge to First Additional District Judge, Raigarh, District- Raigarh in Civil Appeal No. 71/2016 (Prabhakar Kohle Vs. Mokar Prasad Pandey & others) arising out of the judgment and decree dated 23.08.2016 passed by Second Civil Judge Class-I, Raigarh, District- Raigarh (C.G.) in Civil Suit No. 487A/2003 for declaration of title, vacant possession and grant of permanent injunction of the suit property mentioned in Schedule- A of the plaint. 3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 487A/2003. 4. The instant Second Appeals have been admitted for hearing on 12.01.2023 on the following substantial questions of law:- “1. Whether findings of the Courts below decreeing the Plaintiff’s claim for removal of encroachment as made by Defendant No. 1-Prabhakar Kohale with regard to 29ft. x 29ft. = 841 sq.ft., the part of land in question bearing Khasra No. 162 area 0.372 hectare, despite holding that the alleged demarcation was made in 1991 without issuing notice to him, is perverse ? 2. Whether in absence of any order passed by the Tehsildar under Section 129 of the Chhattisgarh Land Revenue Code, 1959, the demarcation report dated 26.05.1999, marked as Ex. P-1, could be held to be sustainable in the eye of law?” 5. The brief facts, as reflected from the plaint averments, are that the plaintiff has filed civil suit on 12.05.2003 for grant of permanent injunction and for vacant possession of the suit property mainly contending that:- (A) The land situated at Patwari Halka No. 13, Village- Baikunthpur Dhangardipa Raigarh, Khasra No. 162, area admeasuring 0.372 Hectare (subsequently referred to as suit property) belongs to the plaintiff in which he is doing agriculture work. Defendant No. 1 has forcefully encroached 29 x 29 = 841 sq.ft. land out of the land mentioned in Schedule-A of the plaint and defendant No. 2 has forcefully encroached upon 29 x 50 = 1450 sq.ft. of land by purchasing from Seluram S/o Ghasiram Yadav and started construction over it. Defendants No. 1 & 2 are making attempt to encroach the suit land and have started construction for last 4-5 days. (B) The plaintiff asked them to remove their encroachment, instead the removing their encroachment, they denied the title of the plaintiff over the suit land. It has been further contended that the plaintiff and his son moved an application before Tahsildar, Raigarh for restraining the defendants to encroach and construction over the suit property in which, Tahsildar, Raigarh vide order dated 03.05.2003 has granted stay in favour of the plaintiff. In spite of the stay granted in favour of the plaintiff, the defendants are continuously encroaching and constructing the house over the suit property. (A) It has been further contended that in the year 1999, the demarcation was already conducted by the Revenue Inspector in presence the witnesses and has submitted list of encroachers of land bearing Khasra No. 162 area admeasuring 0.372 Hectare as the defendants started encroaching the suit land from 1999 and started construction over it. It has also been contended that defendant No. 1 earlier was residing on rented house at Darogapara, Mastagali, Raigarh and falsely contended that the suit land has been purchased by him from defendant No. 2/ Seluram who was residing at Kotraroad, Raigarh who infact not a title holder of the suit property, therefore, it is being prayed for grant of permanent injunction and possession with regard to the suit property against defendants No. 1 & 2. Page 5 of 14 6. Defendants No. 1 & 2 have filed their written statement denying the allegations made in the plaint and contended that:- (A) They have not encroached the suit land and also denied that they have violated the order passed by the Tahsildar. It has also been contended that they are residing peacefully over the suit property for last 45 years, as such they have acquired right over the suit property on the basis of adverse possession. (B) It has been further contended that the plaintiff has pleaded that the demarcation was conducted in the year 1999 by the Revenue Inspector, but no notice was served upon the defendants regarding demarcation. In the demarcation application field by the plaintiff, it is mentioned that the defendants are residing in the suit land since 40 years, thus, it is quite vivid that the plaintiff is not in possession of the suit land for last 40 years, therefore, the suit filed by the plaintiff is barred by limitation as the same has not been filed within time. It has been further contended that even if the plaintiff is title holder of the suit property then also they are entitled to get decree of title on account of adverse possession, as such they cannot be removed from the suit property. It has been further contended that at the time of demarcation, list of possession holders was submitted but none of the parties have entered, therefore, on the basis of non-joinder of the necessary parties, the suit is not maintainable. It has been further contended that the plaintiff has not filed any suit for declaration of title, therefore, he cannot claim relief of injunction and prayed for dismissal for the suit. Page 6 of 14 7. Learned trial Court on the pleadings of the parties, has framed as many as eight issues. Issue No. 1, 3 & 7 are relevant for adjudication of this appeal, as such, the same are extracted below:- “1. Whether the land mentioned in Schedule-A situated Patwari Halka No. 13, Village- Baikunthpur Dhangardipa, Raigarh, Khasra No. 162 total area admeasuring 0.372 Hectare is in possession and title of the plaintiff? 3. Whether the defendants have acquired full title of the suit land on the basis of adverse possession? 7. Whether defendant No. 4 has sold the land encroached by him 29 x 50 sq.ft. to defendant No. 2 after demarcation of the land?” 8. The plaintiff to substantiate his case has examined Manoranjan Prasad (PW-1), John George Xalxo (PW-2), Laxminarayan Das (PW-3) and exhibited document namely Demarcation report submitted by Revenue Inspector (Ex. P/1), Khasra Panchshala for year 1998-99 (Ex. P/2), list of encroachers (Ex. P/3), Map (Ex. P/4, P/5), letter dated 26.05.1999 written to Tahsildar, Raigrh for submitting demarcation report (Ex. P1/C2), Panchanama (Ex. P2/C), Khasra P-II (Ex. P/3C) & list of encroachers (Ex. P4C). 9. The defendants to substantiate their case examined Prabhakar Kohle (DW-1), Trilochan Dewangan (DW-2), Ishwar Dewangan (DW-3) but no document has been produced in support of their contention. 10. Manoranjan Prasad Pandey (PW-1) has examined by way of an affidavit as provided under Order 18 Rule 4 C.P.C. wherein he has reiterated the stand taken by him in the plaint and in the cross- examination, he has admitted that he has not filed suit claiming declaration of title of the suit land and he has denied that the defendants are in possession of the suit property since 40 years. Page 7 of 14 11. John George Xalxo (PW-2) was examined wherein he has stated that he has done demarcation of the plaintiff’s land bearing Khasra No. 162, 110, 112 on 28.05.1999. He has also stated that in Khasra No. 162, 17 persons have constructed house by encroaching the land and a panchnama was also prepared by him. In the cross-examination, he has also stated that in the list of encroachment Prabhakar Kohle and Alisba Kujur was also there. He has also stated that the persons who have been found encroached, were not noticed for their presence at the demarcation place. He has also stated in the cross-examination that he has done demarcation as per order of Tahsildar regarding land Khasra No. 162. He has also admitted that in Ex. P/4, it has been mentioned that the persons whose houses have been constructed for 40 years, their names have been mentioned. 12. Laxminarayan Das (PW-3) in his examination-in-chief by way of an affidavit has stated that at the time of demarcation, the persons who have encroached plantiff’s land namely Selu & Bhaiya are only known to him. He has further stated that they are only the persons who have encroached the plaintiff’s land and denied that any demarcation has been done before him. 13. Prabhakar Kohle (DW-1) in his cross-examination has admitted that he has not produced any document with regard to the title of the suit property as well as the document related to permission by Nagar Nigam, Raigarh before starting construction of house. He has denied that he has started construction of house on the suit land since 2004 and admitted that the land situated at Village- Dhangardipa Khasra No. 162 is plaintiff’s land and he has also admitted that the suit house is situated at Khasra No. 162. He is not aware if plaintiff’s father namely Mokar Prasad has demarcated the land in 1999. He has admitted that Serial No. 2 of list Ex. P/4 submitted by the Revenue Inspector along with demarcation report, it has been mentioned that he has made kitchen garden encroaching 841 sq.ft. land of the suit land. He has also stated that he is not aware that other 20 persons including him have encroached the suit land. 14. Trilochan Dewangan (DW-2) in his cross-examination has stated that he has not submitted any document to establish that the house has been legally constructed and has also not submitted any document from first date of living in the suit land. Ishwar Dewangan (DW-3) in his cross-examination has stated that he is aware that Seluram was in possession of plaintiff’s land. He is not aware that the defendants have constructed the house encroaching plaintiff’s land. 15. Learned trial Court after appreciating the evidence and material on record vide its judgment and decree dated 23.08.2016 decreed the suit in favour the plaintiff and has recorded its finding at paragraphs 11 & 12 that the defendants have not taken any plea challenging title of the plaintiff and during pendency of the suit, Mokar Prasad Pandey expired and Manoranjan Prasad Pandey has been arrayed as legal representative, therefore, the successive interest of Manoranjan Prasad Pandey is established and in absence of any rebuttal with regard to title of the suit property, it has been held that the plaintiff is the title holder of the suit property bearing Khasra No. 162. Accordingly, Issue No. 1 has been decided in favour of the plaintiff. Learned trial Court taking into consideration the statement of Manoranjan Prasad (PW-1) as also the fact that the cause of action started from 25.04.2003, has dismissed the plea taken by the defendant regarding delay. Being aggrieved with the judgment and decree passed by the learned trial Court, defendants No. 1 & 2 preferred an appeal which has also been dismissed by the Appellate Court. Being aggrieved with the judgment passed by the learned Appellate Court, defendants have preferred these Second Appeals before this Court under Section 100 of the Cr.P.C. which have been admitted by this Court on 12.01.2023 by framing the substantial question of law as aforestated. 16. Learned counsel for the appellants/defendants would submit that the finding recorded by the learned First Appellate Court is bad in law and contrary to the facts and revenue record as the plaintiff is not entitled to get decree. He would further submit that the learned trial Court and the First Appellate Court have recorded its finding that the defendants have accepted the plea of title of the plaintiff on the suit property whereas they have made conditional admission, as such it cannot be said that the plaintiff is owner of the suit property. He would further submit that the findings recorded by the trial Court as well as the First Appellate Court are contrary to the law because both the Courts have not taken care of provisions of Section 129 of the Land Revenue Code. He would further submit that learned trial Court has held in paragraph 14 that the plaintiff has admitted in evidence that the notice of demarcation was not given to any person residing near the suit property including the defendants, therefore, the demarcation report has not been proved. In the present case, the suit land is in possession of defendant No. 1 and he is residing in the house for more than 45 years, as such he became title of the suit property on the basis of adverse possession, therefore, the judgment and decree of both the Courts are illegal and against the law and would pray for setting aside the same. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of Jagdish Prasad Patel (Dead) Through Lrs. Vs. Shivnath & others [(2019) 6 SCC 82] & P. Kishore Kumar Vs. Vittal K. Patkar [2023 INSC 1009]. 17. Per contra, learned counsel for the respondents/plaintiff would submit that the findings recorded by the learned trial Court as well as by First Appellate Court are just and proper and do not warrant any interference by this Court. He would further submit that the learned trial Court has rightly held on the basis of Panchnama (Ex. P/1) that defendants’ names were mentioned as encroachers and witness namely John George Xalxo (PW-2) has admitted title of the suit property. He would further submit that the defendants have taken plea of adverse possession which is not permissible in the eyes of law as it is well settled position of law that unless and until the parties admitted the title then only plea of adverse possession will be applicable. He would further submit that there is no requirement of compliance of Section 129 of the Land Revenue Code as the same is related to demarcation of boundaries of survey number or sub-division or plot number where there is dispute about boundaries of the property situated near to each other whereas in the present case, the defendants are not having the title over the suit property. He would further submit that the trial Court has rightly relied upon the Panchnama as it is question of encroachers and it is for the defendant to plead and prove that they have not encroached the suit land which they have failed to do so, therefore, the substantial question be answered in favour of the plaintiff and against the defendants and would pray for dismissal of the appeal. 18. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. Discussion and finding on Substantial Question of Law No. 1 19. From evidence and material available on record, it is not in dispute that the defendant in the cross-examination has clearly admitted that the suit property belongs to the plaintiff and have also stated that the revenue record shows the name of the plaintiff in the suit property and there is no rebuttal to this fact by any documentary evidence produced by the defendants. The defendants have also not produced any document stating that the suit land is owned by them, as such they are in possession of the suit property on a legal permissible ground. In absence of any such foundation facts, the finding of the trial Court cannot be held to suffer from perversity or illegality warranting interference by this Court. From perusal of the record also though the Revenue Inspector in his evidence has stated that no notice was issued to the persons for demarcation, still the defendant should have produced the document regarding their title over the suit property. In absence of any such document on record, it cannot be said that the non-issuance of notice to the defendants by the Revenue Inspector, has caused prejudice and had adversely affected any right of the defendants. 20. In the present case, the defendant has admitted the fact that the suit property is owned by the plaintiff and no such material or evidence has been placed on record regarding title of the defendant with regard to the suit property, therefore, any possession by them will be encroachment only. As such, Substantial Question of Law No. 1 deserves to be answered in favour of the plaintiff and against the defendants. Discussion and finding on Substantial Question of Law No. 2 21. To appreciate the finding of Substantial Question of Law No. 2, it is expedient for this Court to extract Section 129 of the Land Revenue Code, which reads as under:- “Section 129. [Demarcation of boundaries of survey number or sub-division of survey number or block number or plot number- (1) The Tahsildar may, on application of a party depute a Revenue Inspector or Nagar Sarvekshak or Patwari to demarcate the boundaries of a survey number or of a sub- division of survey number or of a block number or of a plot number and construct boundary marks thereon. (2) The Revenue Inspector or Nagar Sarvekshak or Patwari so deputed shall, after giving notice to parties interested including the neighbouring land holders, demarcate the boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number, construct boundary marks thereon and submit a demarcation report to the Tahsildar in such manner as may be prescribed. The demarcation report shall also include the particulars of the possession, if any, of any person other than the Bhumiswami on the land demarcated. (3) For carrying out the demarcation the Revenue Inspector or Nagar Sarvekshak or Patwari may take the assistance of such agency and in such manner as may be prescribed. (4) On the receipt of the demarcation report, the Tahsildar may, after giving opportunity of hearing to the parties interested including the neighbouring land holders, confirm the demarcation report or may pass such order as he thinks fit. (5) A party aggrieved by the confirmation of demarcation report under sub-section (4), may apply to the Sub-Divisional Officer to set it aside on any of the following grounds-(a)that he was not given notice required under sub-section (2) or opportunity of hearing under sub-section (4); or(b)any other sufficient ground :Provided that such application shall not be entertained after the expiry of forty-five days from the date of confirmation the demarcation report by the Tahsildar or the date of knowledge, whichever is later. (6) The Sub-Divisional Officer may, if he admits the application made under sub-section (5), after giving opportunity of hearing to the parties interested including the neighbouring land holders and making such enquiries as he may think fit, either confirm the demarcation report submitted under sub-section (2) or depute a team consisting of such persons as may be prescribed to carry out the demarcation once again. (7)The team deputed under sub-section (6) shall, after giving notice to parties interested including the neighbouring land holders, demarcate the boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number, construct boundary marks thereon and submit report to the Sub-Divisional Officer in such manner as may be prescribed and the Sub-Divisional Officer may pass such orders on it as he thinks fit. (8) Notwithstanding anything contained in sections 44 and 50. no appeal or application for revision shall lie against any order passed or proceedings taken under this section. (9) The State Government may make rules for regulating the procedure to be followed by the Tahsildar in demarcating the boundaries of a survey number or of a subdivision of survey number or of a block number or of a plot number prescribing the nature of the boundary marks to be used, and authorizing the levy of fees from the holders of land in demarcated survey number or sub-division or block number or plot number.]” 22. Learned counsel for the appellants/defendants would submit that the demarcation report dated 25.04.2003 has lost its significance as no order has been placed on record that the demarcation has been done in revenue proceedings for its admissible under law. This submission is incorrect submission as the Revenue Inspector in his evidence has stated that the Tahsildar has directed him to issue order to make demarcation whereas the order of demarcation is to be placed on record, as such the demarcation has been done in pursuance of authority granted to him, therefore, it cannot be said that the Panchnama has been prepared without any authority of Tahsildar. Therefore, the Substantial Question of Law No. 2 is answered in favour of the plaintiff/respondent and against defendant No. 1/appellant. 23. Accordingly, the instant Second Appeal is liable to be and is hereby dismissed. A decree be drawn up accordingly. 24. The interim order passed by this Court on 12.01.2023 stands vacated. Sd/- (Narendra Kumar Vyas) Judge Arun