1 2025:CGHC:48504 NAFR Reserved on 01.07.2025 Delivered on 22.09.2025 HIGH COURT OF CHHATTISGARH, BILASPUR SA No. 70 of 2013 1 - Shridhar Chandrakar S/o Late Manharan Lal Chandrakar Aged About 45 Years R/o Old Basti Mahasamund, P.S. Mahasamund, Tah. And Distt. Mahasamund C.G., Chhattisgarh ... Appellant versus 1 - District Forest Officer (D.F.O.), Forest Division Office, Mahasamund, Tah. And Distt. Mahasamund C.G., Chhattisgarh 2 - State Of Chhttisgarh Thru- The Collector, Mahasamund, Distt. Mahasamund C.G., District : Mahasamund, Chhattisgarh ---- Respondent(s) --------------------------------------------------------------------------------------------------- For Appellant : Mr. Vivek Tripathi, Advocate For State : Mr. Neeraj Sharma, Dy. Advocate General ------------------------------------------------------------------------------------------- Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment 1. This is plaintiff’s Second Appeal filed under Section 100 of the C.P.C. challenging the judgment and decree dated 21.11.2012 passed by the learned Second Additional District Judge, Mahasamund District – Mahasamund (C.G.) in Civil Appeal No. 71A/2010, by which learned Second Additional District Judge has allowed the appeal filed by defendant No. 1 and set aside the 2 judgment and decree dated 11.03.2010 passed by the First Civil Judge, Class –I, Mahasamund, District – Mahasamund in Civil Suit No. 49-A/2009. 2. The appeal was admitted on 07.12.2021 on the following substantial questions of law :- A. Whether the Courts below erred in dismissing the plaintiff’s claim by disbelieving the demarcation report (Ex.P/1) submitted by the Revenue Inspector under Section 129 of the Chhattisgarh Land Revenue Code, 1959? B. Whether the reasons as assigned by the lower appellate Court while rejecting the application filed on 16.11.2010 under Order 26 Rule 9 CPC read with Order 41 Rule 27 CPC is sustainable ? 3. For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit before the trial Court. 4. The plaint averments, in brief, are that plaintiff filed a civil suit before the Civil Judge, Class I, Mahasamund for removal of encroachment and permanent injunction contending that :- A. The plaintiff is a farmer and a member of a joint family. The joint family owns total of 22 acres of agricultural land in the villages of Mahasamund, Kanekera and Jhalkhamharia which is jointly occupied and the land is recorded in the revenue records separately in the name of the plaintiff, his mother and the plaintiff's brother. Out of the land owned by the plaintiff, Khasra No. 743/1 and Khasra No. 743/3 are situated in P.H.No. 142/89 R.Circle Mahasamund wherein in the year 2004 defendant No. 1 has forcibly encroached about 1100 Sq.ft. of land and constructed a barrier, a house and also 3 fenced the area (hereinafter referred to as ‘the disputed land’).The plaintiff submitted an application before the Tehsildar for demarcation which was done on 05.06.2004 wherein it was found that the house and fence were found constructed on 1020 Sq. feet land of the plaintiff. He raised objection, but defendant No. 1 has not removed the encroachment made by them. B. The plaintiff again submitted an application to the Divisional Forest Officer on 24.02.2005 who inturn directed the Forest Range Officer, Mahasamund to demarcate the land. Then the Range Officer and the Halka Patwari and other concerned employees had demarcated the suit land wherein illegal possession of the Forest Department Mahasamund was found. The said demarcation report is available with the Divisional Forest Officer but no action was taken by defendant No. 1. Thereafter, he sent a legal notice on 12.07.2008 through counsel to defendant No.1 which was not replied. Hence, the plaintiff filed civil suit to demolish the construction done by the defendant No. 1 over disputed land and give possession of the vacant land to him. C. Defendant No. 1 filed written statement denying the allegation levelled in the plaint and contended that the forest department had made construction over the suit land in the year 1990. The defendants are not bound by the demarcation done by the Tahsildar. Defendant No. 1 admitted that the plaintiff had given an application to the Forest Divisional Officer on 24th February 2005 but denied that they in the 4 presence of revenue officials have demarcated the land. It has been further contended that on 21st February, 1878 the disputed land was marked as reserved forest and separated from other lands, the said land was registered in forest block Bemcha as Compartment No. 809 to 813. As the boundary line of the forest department and revenue land is the same, therefore, it was proposed to get the demarcation done jointly by the team of forest department and revenue department through the District Magistrate, Mahasamund. The Suit is barred by limitation as the plaintiff raised no objection at the time of construction of depot in 1990 and now after 19 years he has filed suit. It has been further contended that there are many other owners of the disputed land, but they have not been made party to the suit. Hence, he prayed for dismissal of the suit with cost. 5. On the pleadings of the parties, learned trial Court has framed as many as 3 issues. Issue No. 1 is relevant which is extracted below:- 1. क्या तुमगाँव रोड, महासमुन्द वादी के भूमिम स्वामी हक की P.H.No. 142/89 में स्थिस्त भूमिम खसरा नम्बर 743/01 एव खसरा नम्बर 743/3 के क्रमश 335 वग#फु ट एवं 685 वग#फू ट भाग पर प्रतितवादी कमांक-01 ने अवैध रूप से कब्जा कर मकान एवं घेरा का मिनमा#ण कर लि3या है ? 6. The plaintiff to substantiate his case has examined himself as PW/1, Ishwar Ram Tandon, Assistant Superintendent, Bhu- Abhilekh Shakha as PW/2 and exhibited documents namely Kistbandi Khatauni as Ex.P/1, Khasra as Ex.P/2, Application as Ex.P/3, maps as Ex.P/4 to Ex.P/6C, Panchnama as Ex.P/7C, Application under Section 80 of the CPC as Ex.P/8, reply from Public Information Officer as Ex.P/9, letter from DFO Ex.P/10 to 5 Ex.P/11. The Defendants examined S.S. Navik, Ranger as DW/1 and exhibited documents namely letter dated 28.01.2009 as Ex.D/1, Janch Prativedan as Ex.D/2, Map as Ex.D/3 and D/4, Panchnama as Ex.D/5, application of plaintiff dated 21.07.2004 as Ex.D/6, letter dated 16.03.2009 as Ex.D/7. 7. Learned trial court considering the evidence, material on record has dismissed the suit and recorded its finding that the plaintiff has failed to prove his case. This order was assailed before the First Appellate Court under Section 96 of the CPC contending that the learned trial Court has miserably failed to appreciate the evidence, material on record though the plaintiff has proved his case whereas no evidence was adduced by the defendants to rebut the evidence of the plaintiff. Even the defendants have not rebutted the pleadings, still the learned trial Court has committed illegality in dismissing the suit. He also moved an application under Order 26 Rule 9 r/w Order 41 Rule 27 and 151 of the CPC for appointment of Commissioner. Learned first appellate court after re-appreciating the evidence and materials on record, recorded its finding that the trial Court rightly passed the order and there is no necessity of appointing Commissioner, therefore, rejected the application under Order 26 Rule 9 r/w Order 41 Rule 27 and 151 of the CPC , accordingly, dismissed the appeal. This judgment is being challenged by the plaintiff by filing second appeal before this Court. 8. Learned counsel for the appellant would submit that both the courts below have committed error in giving concurrent findings regarding title of the appellant. Learned trial Court as well as the 6 Appellate Court have failed to appreciate the demarcation report which has presumptive value in favour of the appellant as per Section 170 of the Land Revenue Code. Though the appellant as well as the defendants proposed to demarcate the land jointly by the Forest as well as Revenue Official to sort out the matter, still it has been given finding that no demarcation is required, therefore, he would pray for allowing the appeal. 9. On the other hand, learned counsel for the State would submit the learned trial Court has passed very reasoned order which has been affirmed by the learned first appellate Court, there is no illegality or perversity which warrants interference by this Court. 10. I have heard learned counsel for the parties, perused the documents with utmost satisfaction. Discussion and finding on Substantial Question No. 1 11. For determining the substantial question of law No. 1 it is expedient for this Court to refer to Section 129 of the Land Revenue Code which reads as under :- 129. Demarcation of boundaries of survey number or sub.- division or plot number.-(1) The Tahsildar or any other Revenue Officer empowered to act may, on the application of a party interested, demarcate the boundaries of a survey number or of a sub-division or of a plot number and construct boundary marks thereon. (2)The State Government may make rules for regulating the procedure to be followed by the Tahsildar or any other Revenue Officer empowered to act in demarcating the boundaries of survey number or of a sub-division or of a plot number prescribing the nature of the boundary marks to be used, and authorising the levy of fees from the holders of land in a demarcated survey number or sub-division or plot number. 12. The State Government in pursuance of the power conferred under Section 129 of the Land Revenue Code has framed Rules 7 regarding demarcation and maintenance of boundary and construction of boundary marks. The Rule 3 of the said Rules provides that in the application made under Rule 2 shall set forth the particulars regarding the details showing adjoining survey number but the plaintiff has not filed copy of the application submitted by him wherein he has to mention about the adjourning survey number but only submitted the demarcation report which does not specify whether the suit land is forest land or the land belongs to the plaintiff. From bare perusal of the report, it is quite clear that in the report he has mentioned that there may be possibility of error in the Chanadamunera of the forest department but he has not specified whether the suit property is forest land or revenue land and belongs to the plaintiff or defendant, which itself creates doubt over the correctness and genuineness of the demarcation report. It is pertinent to mention here that the demarcation was conducted on 05.06.2004 and even no notice was given to the forest department and thereafter the suit was filed before the trial Court on 25.03.2009. The plaintiff’s witness PW/2 Ishwar Ram Tandon, Assistant Superintendent (Land Records) in his cross-examination has admitted that he has not annexed any notice which has been given to the forest department at the time of demarcation. He has voluntarily stated that information was given which clearly establishes that there is apparent procedure lapses while conducting demarcation. Therefore, both the courts below have not committed any illegality or irregularity in not believing the demarcation report. Thus, substantial question of law framed by this Court deserves to be 8 answered in favour of the defendants and against the plaintiff. Discussion and finding on Substantial Question No. 2 13. For better understanding the substantial question of law it is expedient for this Court to extract Order 26 Rule 9 of the CPC which is extracted below :- Order 26, Rule 9: Commissions to make local investigations:-- "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: 14. The issue with regard to appoint of local commissioner for elucidating any matter in dispute, particularly with regard to dispute about demarcation of the land necessity of engagement of local commissioner is always bone of contention between the parties. This issue has come up for consideration before the Hon’ble Supreme Court in case of Haryana Waqf Board vs. Shanti Sarup and Others {(2008) 8 SCC 671} wherein Hon’ble Supreme Court has held as under :- “2. This is an appeal filed by the Punjab Waqf Board who was the plaintiff in a suit for declaration and injunction. The High Court in the second appeal had summarily dismissed the appeal on the ground that the second appeal was concluded by the concurrent findings of fact arrived at by the courts below. From the judgment itself, it would appear that the Board had failed to prove that the respondents have encroached any land belonging to the appellant-Board. In view of the aforesaid position, the second appeal was summarily dismissed by the High Court. In our view, the High Court ought not to have dismissed the suit summarily merely on the ground that the second appeal was concluded by the concurrent findings of fact. 3. The dispute that was raised by the parties before the 9 court was whether the respondent had encroached upon any land belonging to the appellant-Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land. 4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. 5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. 6. It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.” 15. From the above stated position of law and considering the fact that the appellant has submitted an application under Order 26 Rule 9 CPC before the learned First Appellate Court which has rejected the same for demarcation of the land by appointing Local Commissioner without considering the law and facts as there was dispute with regard to the identification of the suit land which cannot be demarcated without physical demarcation. The record further demonstrates that the defendants have also intended to get the land demarcated jointly in presence of Revenue Officers and the Forest Officers as evident from the Ex.P/11 and pleadings 10 made by the defendant No. 1 in the written statement filed before the trial Court. Thus, the judgment and decree passed by the learned First Appellate Court deserves to be set aside and accordingly it is set aside. 16. So far as application for taking additional evidence on record the plaintiff has not filed any additional document on record but in the application filed under Order 26 Rule 9 CPC he has reiterated the stand taken by him. As such, it is not required to be adjudicated upon by this Court, as decision on this application is dependable upon the order passed by this Court in foregoing paragraphs. 17. From the abovestated discussion and facts of the case, the substantial question of law No.2 framed by this Court is answered in favour of the plaintiff and against the defendants. This Court exercising its power under Order 41 Rule 23-A CPC is empowered to reverse the decree if retrial is considered necessary and can very well remit the matter to the trial Court for limited purpose. Accordingly, the application under Order 26 Rule 9 CPC read with Order 41 Rule 27 CPC filed before the learned First Appellate Court is allowed. Now the matter is remitted back to the learned trial Court to appoint a Local Commissioner under Order 26 Rule 9 of the CPC who shall be a Practicing Lawyer well acquainted with the Revenue Proceeding, particularly demarcation of land to carry out physical examination of the suit land in presence of the Revenue as well as Forest Officers. The respondent department is also at liberty to produce the records which they are having at the time of demarcation and the Commissioner so appointed will prepare the report on the basis of 11 material collected by him during the course of physical examination of the suit land and all documentary evidence produced by the parties before it. 18. The learned trial Court on the basis of report, evidence before it on point of commission engaged by it, within 9 months from the date of engagement of the Commissioner will decide the suit. The Commissioner is also directed to submit its report within 3 months from the date of engagement of the Commissioner by the learned trial Court. The parties are directed to appear before the learned trial Court on 03.11.2025. 19. Consequently, the judgment and decree passed by the learned Trial Court and affirmed by the learned Appellate Court in First Appeal is set aside. Accordingly, the instant Second Appeal is allowed in part as indicated above. 20. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Deshmukh KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.09.22 17:58:04 +0530