1 2025:CGHC:57977 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 577 of 2017 1 - Bittulal S/o Hiraji, Aged About 52 Years R/o Village Chipawnad, Tahsil Kondagaon, District Kondagaon Chhattisgarh., Chhattisgarh ... Appellant(s) versus 1 - Dharamdas Dewangan S/o Fotaku, Aged About 70 Years R/o Village Chipawnad, Tahsil Kondagaon, District Kondagaon Chhattisgarh. , Chhattisgarh 2 - State of Chhattisgarh, Through Collector Kondagaon, District Kondagaon Chhattisgarh., District : Kondagaon, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Pravin Kumar Tulsyan, and Mr. Vikas Patel, Advocate. For Respondent(s) : Mr. Aman Tamboli, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board 28/11/2025 1. This is the second appeal filed by the defendant No. 1 under Section 100 of the Code of Civil Procedure 1908, against the impugned judgment and decree dated 07.07.2017 passed by learned District Judge, Kondagaon in Civil Appeal No. 3-A/2016, whereby the first appeal filed by the defendant No. 1 has been dismissed and the judgment and decree dated 20.07.2015 passed by learned Civil Judge Class-I, Kondagaon in Civil Suit No. 3-A/2012 is affirmed. 2. For the sake of convenience the status of the parties shown in the civil suit are being taken in the present appeal also. ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.01.05 11:01:38 +0530 2 3. The plaintiff had filed a civil suit for declaration of title, vacant possession and permanent injunction over the suit land Khasra No. 84/30 area 0.03 acre, abadi land, situated at village Chipawand, Tahsil and District Kondagaon. The plaintiff pleaded in the plaint that a lease was granted in his favour with respect to the suit land vide order dated 17.07.1997 by the State Government and he came in possession of the same. In the year 2004, the defendant No. 1 encroached his land and constructed a cattle shade there. In the year 2006 he erected rough wall and put his paddy stored there. When the plaintiff asked him to remove his construction from his land, the defendant No. 1 started altercation with him. The matter was reported to the Gram Panchayat and when Patwari was also called for its demarcation, the defendant No.1 exhorted them, therefore, demarcation could not be done. In the year 2012, he made an application to the Collector, Kondagaon and on the intervention of Collector a demarcation was done on 24.06.2012 with respect to the land of the plaintiff as well as the land of the defendant No. 1 and it was found that the defendant No. 1 had encroached the land of the plaintiff. He made an application for removal of the encroachment to the Tahsildar, Kondagaon. In the said proceeding an order was passed on 27.08.2012 holding that since the suit land consists of a construction of cattle shade surrounded by a wall, the jurisdiction to pass the order for possession is rest with the Civil Court and the plaintiff may approach before competent Civil Court to redress his grievances and then the present suit has been filed. 4. The defendant No.1 contested the claim of the plaintiff and filed his written statement and denied the pleadings and pleaded in written statement that he is not in possession of the plaintiff’s 3 dismil of land which has been allotted to him by lease on17.07.1997. He neither in possession of the plaintiff’s land nor constructed any house thereon. But he is in possession of his own 5 dismil of land since more than 30 years. He also stated that the revenue authorities have prepared an illegal demarcation report and produced it 3 before the Tahsildar. The land in which the defendant No.1 is in possession, is not the land of the plaintiff, therefore, he is not entitled for any relief. 5. On the basis of the pleadings made by learned counsel for the parties, the learned trial Court has framed the following issues: दन 1. द म ड, तह ल ल-ड (छ००) म !त "#म ख0न0 84/30 र& 0.03 ए( दन 17.07.1997 )न *र "#म म ह दन र द + ,-त र द ह. ? 2. तद 0-1 न/ उ1 म ड, तह ल ल - ड (छ००) म !त "#म ख०न० 84/30 र& 0.02 ए( "#म -2 2006 र3 म ल( 4 &5 (र त+ल अ !ई 8 9 ए ल( रखन/ .र मड त.र र : र ल ह; ? 3. द तद 0-1 / द त "#म ड, तह ल ल-ड !त "#म ख०न० 84/30 र& 0.03 ए( <र1 आ>+ ? रन/ अ>र ह; ? 4. द उ1 द"#म / &> म तद 0-1 / @A ! न-/>B ? रन/ अ>र ह. ? 5. तद 0-1 न/ अन/ + 4 म ड !त ख0न0 84/30 र& 0.05 ए( त 30 -C / मन &नर ए )/- "#म र 9 &नर & ह.? 6. हत ए D ? 6. In support of the claim of the plaintiff he has examined himself as PW-1 Dhansingh Markam PW-2, Jaggnath Korram PW-3, has relied upon the document Ex.P/1 which is order dated 27.08.2012 passed by Tahsildar Kondagaon. Ex.P/2, Ex.P/3, Ex.P/4, Ex.P/5 and Ex.P/6 are the documents which relates to the demarcation of the suit land of the plaintiff as well as defendant No.1, Ex.P/7 is the revenue map and Ex.P/8 is the Khasrapanchshala of the land of the plaintiff. The defendant No. 1 has examined himself as DW-1, Sadaram Dewangan DW-2, Maandas Manikpuri DW-3 and has relied upon the document Ex.P/1, which is the order dated 27.08.2012 passed by Tahsildar, Kondagaon, Ex.D/2 is the revenue map, Ex.D/3 is the Khasrapanchshala, Ex.D/4 is the Kishtbandi Khautani and Ex.D/5 is the mutation register. 7. After considering the evidence produced by the parties, the learned trial Court has decreed the suit of the plaintiff holding that the plaintiff has proved that 3 dismil of land of Khasra No. 84/30 was allotted to him on 17.07.1997 4 by the State Government on lease and the said land of the plaintiff was encroached by the defendant No. 1. The learned trial Court has relied upon the demarcation report Ex.P/2 to Ex.P/6, and found that the defendant No.1 is in possession of 13 dismil of land which is in excess of the land allotted to him out of which he is also in possession of the 3 dismil land of the plaintiff and has passed the decree in favour of the plaintiff. 8. The judgment and decree passed by learned trial Court was challenged by the defendant No.1 before the first appellate Court which has also been dismissed vide its judgment and decree dated 07.07.2017 and the trial Court’s judgment and decree has been affirmed. Hence the second appeal. 9. Learned counsel for the appellant would submit that the plaintiff has failed to prove his case that the land in which the defendant No.1 is in possession is the land of the plaintiff which has been allotted by the State Government on 17.07.1997. There is no cogent evidence with respect to the demarcation of the land of the plaintiff as well as the defendant No.1 and the said demarcation report has not been proved by examining its author, therefore, it cannot be said that the demarcation has duly been proved by the plaintiff in which he has informed him encroachment over the land of the plaintiff. He would also submits that the plaintiff himself has given suggestion in cross- examination of the defendant that he is not in possession of the plaintiffs’ land. He would also submits that the demarcation report is not in accordance with law and cannot be relied upon to hold that the defendant No.1 is in encroachment the plaintiffs’ land, therefore, both the judgments and decree passed by learned Courts below suffers from perversity and illegality and there is sufficient substantial question of law involved for its determination in the present appeal. 10. I have heard learned counsel for the appellant and perused the record of the trial Court with utmost circumspection. 5 11. The subject matter revolved around the demarcation and encroachment of the land of the plaintiffs for which the plaintiff has produced the document Ex.P/2 to Ex.P/6 which is the demarcation report. The allotment of 3 decimal of land to the plaintiff on 17.07.1997 has not been denied by the defendant No.1. It is the case of the defendant No.1 that he is not in possession of the plaintiffs’ land. The dispute of encroachment are to be decided by way of demarcation conducted by the revenue authorities. In the present case the plaintiff has filed the demarcation report Ex.P/2 to Ex.P/6, in which it clearly comes that “;g fd vkosnd /kjenkl] firk QqVdq dk okn Hkwfe [kljk ua- 84@30 jdck 0- 03 ,dM ,oa fcrqyky] firk ghjkth dk vkcknh Hkwfe [kljk ua- 84@37 jdck 0-05 ,dM+ lfgr fcrqyky firk ghjkth }kjk vukf/kd`r dCtk fd;k x;k dqy 0-13 ,dM Hkwfe ekSds ij ik;k x;k” which clearly reveals that the defendant No.1 is in possession of the plaintiffs’ land of 3 dismil, which has been allotted to him on 17.07.1997. This demarcation report dated 24.06.2012 was conducted in presence of the defendant No.1, however, he has not challenged his demarcation report in anywhere. By way of demarcation when the plaintiff has proved his case that the defendant No.1 is found in possession of excess land whatever allotted to him and he is also in possession of his land, it is for the defendant No.1 rebut the actual dispute by leading cogent evidence or by examining the revenue authorities that the said demarcation report is erroneous, however, he has not availed his remedy to get it rebutted. 12. Considering the factual dispute and also considering the demarcation report the learned trial Court as well as first appellate Court has passed the decree in favour of the plaintiff, in which this Court does not find any illegality or perversity which warrants interference to admit the second appeal on the substantial question of law for its determination. 13. In the matter of Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, 2012 (7) SCC 288, the Hon’ble Supreme Court held in paragraph 36 & 37 as under: 6 “36. In Major Singh v. Rattan Singh (1997) 3 SCC 546: AIR 1997 SC 1906) it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable d grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhar v. Manikrao(1999) 3 SCC 573, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board18. 14. In the matter of State of Rajasthan and Others vs. Shiv Dayal and Another, 2019 (8) SCC, 637, the Hon’ble Supreme Court held in paragraph 16 & 17 as under: “16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against b any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar para 43.) 17. In our opinion, if any one or more ground, as mentioned above, is c made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.” 15. Considering the evidence available on record and pleadings made by the parties and also in view of the aforesaid law laid down by Hon’ble Supreme Court, I do not find any question of law much less substantial question of law involved in the present appeal for its determination. 16. Accordingly, the second appeal is dismissed without noticing to the other side. 17. No order as to costs. Sd/- (Ravindra Kumar Agrawal) Judge Alok