1 2025:CGHC:60350 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on : 13/11/2025 Judgment Delivered on: 11/12//2025 SA No. 418 of 2018 1 - Prahlad Das S/o Kawal Das Panika Aged About 55 Years Occupation- Labour, R/o Village- Aamapali, Tah, And District- Raigarh, At Present- Baikunthpur, Raigarh, Tahsil And District- Raigarh, At Present- Angual (Orissa)............ (Defendents), District : Anugul *, Orissa ... Appellant(s) versus 1 - Omprakash Agrawal Dead Through Lrs Gayatri Agrawal Aged About 50 Years R/o Danipara, Raigarh, Tahsil And District- Raigarh. Chhattisgarh., District : Raigarh, Chhattisgarh 2 - Ritu Rungta D/o Late Omprakash Agrawal W/o Amit Rungta, Age-34 Years, R/o Tata Nagar, (Jharkhand),, District : Ranchi, Jharkhand 3 - Pankaj Agrawal S/o (Wrongly Mention Wife) Late Omprakash Agrawal R/o Danipara, Raigarh, Tahsil And District- Raigarh. Chhattisgarh., District : Raigarh, Chhattisgarh 4 - Vikash Agrawal S/o (Wrongly Mention Wife) Late Omprakash Agrawal Aged About 25 Years R/o Danipara, Raigarh, Tahsil And District- Raigarh. Chhattisgarh., District : Raigarh, Chhattisgarh 5 - State of Chhattisgarh Through- Collector, Raigarh, District- Raigarh. Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Amit Sharma, Advocate. For Respondent No. 1 to 4. : Mr. Anand Shukla, Advocate. For State/Respondent No.5. : Mr. Kalpesh Ruparel, Panel Lawyer. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. CAV Judgment 1. The instant second appeal has been filed by the appellant under Section 100 of the Code of Civil Procedure, against the impugned judgment and decree ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.12.11 17:44:16 +0530 2 dated 18.05.2018 passed by learned Second Additional District Judge, Raigarh, in Civil Appeal No.29/2018, whereby the first civil appeal is dismissed and the judgment and decree dated 16.02.2018 passed by learned Civil Judge, Class-I, Raigarh, in Civil Suit No. A/481/2008 is affirmed. 2. The present appellant was the defendant No. 1 before the learned trial Court, and the Respondent Nos. 1 to 4 were the plaintiffs. The decree for declaration of title and possession of the suit property after demolishing the construction of the house has been passed by the learned trial Court, which the first appellate Court has affirmed. 3. For the sake of convenience, the status of the parties shown in the civil suit is being taken in the present appeal. 4. The second appeal was admitted on 23.01.2020 on the following substantial questions of law: “1.Whether both the Courts below were justified in holding that defendant has encroached upon the suit land held by the plaintiff bearing Khasra No. 141/1 relying upon the demarcation report dated 30.07.1995 in the civil suit instituted by the plaintiff on 25.10.2008 by recording a finding which is perverse to the record? 2. Whether the first appellate Court was justified in affirming the judgment and decree passed by the trial Court without considering the legality and validity of the finding recorded by the trial Court with regard to Ex. P-3? 5. The plaintiff’s case is that the original plaintiff, late Om Prakash, had purchased the suit property, including the land of Khasra No. 141/1 area 0.729 hectare situated at village Baikunthpur, Tahsil and District Raigarh, through the registered sale deed dated 06.08.1984 from its owner Shaeeda Khan and came into possession of the same. In the year 1995, when the plaintiff apprehended encroachment over his land, he got his land demarcated and obtained a demarcation report dated 03.07.1995, wherein 3 the mother of the defendant No.1, Smt. Chhaya Bai was found in encroachment over 46x26 sq. ft. (total 1196 sq. ft.) by constructing their house thereon. The defendant No.1 was also residing with his mother, Smt. Chhaya Bai. After demarcation, the defendant No.1 again encroached on the northern side of the land over 28x16.6 ft. (1221 sq. ft.) for which the present suit is being filed. The details of the suit property are shown in Schedule A annexed to the plaint. After the demarcation, on being asked by the plaintiff, the defendant No.1 handed over the vacant possession of the suit property to the plaintiff in the year 1996 and went to his village, Amapali. The plaintiff came back in the year 2001 and requested to permit him to reside in the suit property as a licensee, and after getting his own accommodation, he will vacate the suit property. Thus, the defendant No.1 came into possession of the suit property. Since the plaintiff was also in need of a watchman, he permitted the defendant No.1 to reside there as a licensee without any rent. It is also the case of the plaintiff that the one Umend Sharma was encroaching on the land of the plaintiff in the year 2008 and constructing a house thereon, he filed a civil suit against Umend Sharma for declaration of title and permanent injunction before the learned Civil Judge, Class-II, Raigarh. During the proceedings of that civil suit, the plaintiff felt that the defendant No.1, with the collusion of Umend Sharma trying to grab the property of the plaintiff and then he asked the defendant No.1 to vacate the suit property and then the defendant No.1 denied the same and claimed that he was the owner of that property. The plaintiff served a legal notice to the defendant No.1 on 19.08.2008 and revoked the license; however, the said legal notice was refused by the defendant No.1, and then the plaintiff filed the civil suit. 6. After service of summons, the defendant No.1 filed his written statement denied the pleadings made in the plaint and has pleaded that the plaintiff have not get any title over the suit property because the said sale transaction was alleged to be made by Shaeeda Khan through her Power of attorney 4 Vahidur Rahman but no any Power of attorney has been annexed with the said sale deed. The plaintiff is claiming that he purchased the land of Khasra No. 141/1, area 0.729 hectares, whereas the other part of the suit land is recorded in the name of the mother of the defendant No. 1, Smt. Chaya Bai as sheet No.7, plot No. 5/2, area 2310 sq. ft. The land of Khasra No. 140/2 is recorded in the name of Smt. Chhaya Bai since 1976, and she purchased the land from Kishan Lal through a registered sale deed dated 25.08.1973. At that time, the land was recorded as Abadi land, and its four corners have also been mentioned in the said sale deed. The plaintiff's pleading that at the time of demarcation in the year 1995, Chhaya Bai was in possession is a fabricated statement because Chhaya Bai had already died on 14.06.1990, and in the year 1995, she could not be found in possession of the suit property. It is also pleaded that the suit land of the plaintiff is of Khasra No. 141/1/1, and in the demarcation report of the year 1995, it has been mentioned that the plaintiff has sold the land of Khasra No. 141/1/1 to 13 different persons. The mother of the defendant No.1 has purchased the land in the year 1973 from Kishan Lal, which is presently the land of Khasra No. 141/2/4 and in the diversion record, it has been recorded as Khasra No. 241/2, and after the death of his mother, it is recorded in the name of defendant No.1 and his brother Bhagwan Das. He denied the license allegedly given by the plaintiff. The claim of the plaintiff is based on the demarcation report dated 03.07.1995, but till date, the plaintiff has not taken any action against the defendant No.1, and his suit is barred by limitation. The plaintiff has filed the suit with respect to the land of Khasra No. 141/1; however, the revenue documents filed by him is related to the land of Khasra No. 141/1/1, area 0.725 hectares, which is different then the suit land. The defendant No.1 is in possession of his own land of Khasra No. 141/2/4. After the death of the mother of the defendant No.1, the defendant No.1 and his brother have sold 0.021 hectares of land from Khasra No. 141/2/4 to Shanker 5 Lal and Others on 06.12.1995, and at that time, the plaintiff had not raised any objection. Therefore, a false and frivolous claim has been raised by the plaintiff, and his suit is liable to be dismissed. The issue of valuation and limitation has also been raised by the defendant. 7. The learned trial Court, on the basis of the pleading of the parties, framed the following issues: द- न 1. द त सप, खस न. 141/1 क 0.729 क स न स द क क ? 2. द उ! द त "# क तदगण स &! क'( पन क अ*क ? 3. द न द क उ+त #,कन क, प-. /01,क +2पत क ? 4. द क द स* ? 5. सत ए द 4 ? 8. To prove the claim of the plaintiff, he examined himself as PW-1, M.P. Rathore PW-2, Vijay Ijardar, PW-3 and Kamal Agrawal, PW-4. The plaintiff relied upon the documents of the sale deed dated 06.08.1984, Ex.P/1, Power of attorney of Shaeeda Rahman in favour of Mohd. Vahedur Rahman Ex.P/2, demarcation report dated 03.07.1995 Ex.P/3, revenue documents Ex.P/4 and Ex.P/5, legal notice Ex.P/6 and postal receipt Ex.P/7, envelope Ex.P/8. The judgment dated 10.02.2003 passed by the learned 4th Additional District Judge (Fast Track Court, Raigarh) in Civil Suit No. 53-A/2002 Ex.P/9, judgment dated 15.01.2000 passed by learned 2nd Civil Judge Class-II, Raigarh in Civil Suit No. 63-A/1998 Ex.P/10, judgment dated 22.12.1989, passed by the learned 3rd Civil Judge, Class-II, Raigarh, in Civil Suit No. 110- A/86 Ex.P/11, judgment dated 23.01.1995 passed by learned First Additional District Judge, Raigarh in Civil Suit No. 5-A/1990 Ex.P/12, order dated 22.08.2009 passed by learned 3rd Civil Judge, Class-II, Raigarh in Civil Suit No. 81-A/2009 Ex.P/30, demarcation report dated 03.07.1995 Ex.P/13. List of persons who are allegedly found in encroachment over the land of plaintiff 6 Ex.P/14, patwari map Ex.P/15, revenue records Ex.P/16 and Ex.P/17, Panchnama Ex.P/18. 9. The defendant No.1 has examined himself as DW-1, and relied upon the document of Civil Suit No. 1058/1996 Ex.D/1 to Ex.D/19, application made to Tahsildar Raigarh by the plaintiff Ex.D/20, challan receipt Ex.D/21, revenue records Ex.D/22, demarcation application Ex.D/23, memo issued by the Tahsildar Raigarh Ex.D/24 and demarcation report dated 09.04.1985 Ex.D/25, patwari map Ex.D/26 and Ex.D/27, revenue record Ex.D/28, revenue order-sheet Ex.D/29, mutation register of the year 2006-2007 Ex.D/30, demarcation report dated 09.03.2009 Ex.D/31, patwari map Ex.D/32, revenue records Ex.D/33, Ex.D/34 and Ex.D/35, sale deed dated 25.08.1973 Ex.D/36. 10. While deciding the issue Nos. 1 and 2 with respect to the alleged encroachment of the defendant No.1, the learned trial Court has considered the demarcation report Ex.P/3 and in the list of encroachers Ex.P/14, the name of the mother of the defendant No.1, Smt. Chhaya Bai was mentioned at serial No. 60 that she encroached the 1196 sq. ft. (46x26 ft. of Khasra No. 141/1) and also considered the demarcation report dated 09.04.1985 Ex.D/25, in which the name of Smt. Chhaya Bai is mentioned at serial No. 19, and his possession was shown over 70x40 sq. kadi of Khasra No. 141/1. The learned trial Court has also considered that the order-sheets of Ex.D/29, and the mutation register Ex.D/30, the name of Prahlad Das appeared over the land of Khasra No. 41/2/4 area 2310 sq. ft., and thus they found that the mother of the defendant No.1, Smt. Chhaya Bai was in encroachment over 1196 sq. ft. of the land of Khasra No. 141/1, which is a part of the total area of 0.729 hectares of the land of Khasra No. 141/1 and has held that the plaintiff is entitled to vacant possession of the suit property. 11. The learned first appellate Court has also affirmed the finding recorded by the learned trial Court, holding that in the sale deed Ex.D/36, there is no 7 Khasra number mentioned and the defendant No.1 had purchased abadi land, and therefore it cannot be said that the mother of the defendant No.1 had purchased the suit land. The learned first appellate Court has also considered that the defendant No.1 may have got his land demarcated to clarify the location of his land, but he did not do so, and the plaintiff has got his land demarcated, which has been proved by Revenue Inspector PW-2. The learned first appellate Court has also considered the judgments passed in favour of the plaintiff against the other encroachers, Ex.P/9 to Ex.P/11 and had held that the learned trial Court had not committed any error in passing the decree in favour of the plaintiff. The said judgment and decree are under challenge in the present second appeal. 12. Learned counsel for the appellant would submit that the learned trial Court, as well as the first appellate Court, has committed an illegality in relying on the demarcation Ex.P/4 and the list of encroachers Ex.P/14. He would also submit that it is the case of the plaintiff himself that after the demarcation in the year 1995, the defendant No.1 has handed over the vacant possession of the encroached area to the plaintiff and thereafter in the year 2001, the defendant No.1 entered into possession as a licensee, whereas his entire suit is based on the demarcation report and encroachment. After handing over the possession in the year 1996, the effect of the demarcation report has been diluted and executed. For the subsequent alleged encroachment, the earlier demarcation report cannot be considered, as the defendant No.1 is in possession of the same land, which he already vacated. There is no other demarcation report submitted by the plaintiff, and he has not tried to get the land of the plaintiff demarcated by appointing any Commissioner. The burden to prove the encroachment was upon the plaintiff in which he failed to discharge his burden. Therefore, the impugned judgment and decree passed by the learned trial Court as well as the first appellate Court are liable to be set aside. 8 13. On the other hand, learned counsel appearing for the Respondent Nos. 1 to 4 opposes the submissions made by learned counsel for the appellants and submitted that both the learned Courts below have concurrently held that the plaintiff is the title holder of the suit property in which the defendant No.1 is in encroachment. The defendant No.1 has not challenged the demarcation report dated 03.07.1995, and after vacating the encroached land, he again encroached on some excess part of the land. He would also submit that although the defendant No.1 claims that his mother had purchased the 2310 sq. ft. of land in the year 1973. However, his land is different then the suit land of the plaintiff, and it was the Abadi land. The defendant No.1 has not filed any application for the demarcation of his land. With respect to the same demarcation report, the decrees for vacant possession of the suit land have been passed against the other encroachers whose names have been shown in the list Ex.P/14. The encroachment of the land is a question of fact which has been concurrently held by the learned Courts below, and the same cannot be disturbed in the second appeal. He would also submit that the demarcation report Ex.P/3 has rightly been considered by the learned Courts below, and therefore, the appeal filed by the appellant is liable to be dismissed. 14. I have heard learned counsel for the parties and perused the record of the trial Court as well as the impugned judgment and decrees. 15. The plaintiff has filed the suit for possession of the suit property situated at Khasra No. 141/1, area 0.729 hectares and pleaded that he purchased the suit property from Smt. Shaeeda Khan, through a registered sale dated 06.08.1984, proved his title by the sale deed Ex.P/1. The learned trial Court has also found the title of the plaintiff over the land of Khasra No. 141/1area 0.729 hectare by virtue of the said sale deed Ex.P/1, Power of attorney Ex.P/2 and mutation entries Ex.P/4 and Ex.P/5. The question remains as to whether the plaintiff is entitled to vacant possession of the suit property in 9 view of the defence taken by the defendant that he is not in encroachment of any part of the property of the plaintiff, but he remains in possession of his own property, which he purchased through a registered sale deed dated 25.08.1973, Ex.D/35. The claim of the plaintiff is based on the demarcation report dated 03.07.1995, Ex.P/3 and the list of encroachers dated 03.07.1995, Ex.P/14, which is said to be a part of the demarcation report dated 03.07.1995. 16. It is the pleading of the plaintiff in the plaint that after its purchase on 06.09.1984, the plaintiff came into possession of the land of Khasra No. 141/1, area 0.729 hectares. In the year 1995, he demarcated his land, in which the mother of the defendant No.1 was found in encroachment over 1196 sq. ft. (46x26 ft) of the land of Khasra No. 141/1. It is also pleaded that after the demarcation, the defendant No.1 again encroached 28x16.6 ft. of land at the northern side, and thus he encroached a total of 1221 sq. ft. for which the present suit is being filed. The details of the suit property are shown in Schedule A annexed with the plaint. It is also pleaded that in the year 1996, the defendant handed over the vacant possession of the suit property to the plaintiff and had gone to his village Amapali. He again came back in the year 2001 and requested to permit him to reside there as a licensee, and then the defendant No.1 entered into the possession of the suit property as a licensee; however, due to the passage of time, with the collusion of one Umend Sharma, he tried to grab the property of the plaintiff and challenged his title. In the plaint, the plaintiff claimed possession of the property situated over 1221 sq. ft. of Khasra No. 141/1. In his examination in chief, the PW-1 plaintiff has stated that on 03.03.1995 demarcation report was prepared and the mother of the defendant No.1, Smt. Chhaya Bai was found in encroachment over 1196 sq. ft. of Khasra No. 141/1. In his examination in chief, he has not claimed 1221sq. ft., which is contrary to his plaint that when the defendant No.1 had encroached 28x16.6 ft. in the 10 northern side, why the plaintiff has not claimed possession of that part of the property. In his cross-examination, he admitted in Para 14 that on 18.02.1985, he had demarcated his land. 17. The said demarcation of the year 1985 has been filed by the defendant No.1 as Ex.D/25, and in the serial No. 19 of the said demarcation report, the name of Smt. Chhaya Bai was there, and she is in possession of 2800 sq. kadi of the land Khasra No. 141/1, where she has constructed a house. 18. In cross-examination, PW-1 has denied that, despite knowing the fact in the year 1985 that his land was encroached by other persons, he has not initiated any proceedings against them. He reiterated that he has filed the suit for 1196 sq. ft. and other adjoining land over which the encroachment had been done. He further admitted that in his suit, he claimed possession of 1221 sq. ft. of land. 19. From the evidence of the plaintiff PW-1, there is no proper measurement of the land appears as he claimed that before the demarcation in the year 1995, the mother of the plaintiff was found in possession of 1196 sq. ft., after the demarcation, the plaintiff has encroached more land of 28x16.6 ft. in the northern side and the total encroached area was 1221 sq. ft. However, in evidence, he claimed only 1196 sq. ft. of land. From perusal of the document Ex.D/25, it was found that Smt. Chhaya Bai was in possession of (70x40) 2800 sq. Kadi. The plaint map shows that the plaintiff has claimed 74x16.6 ft. of land and not 75x16.6 ft. (as claimed in the plaint). Thus, it transpires that there is no specific measurement of the land over which the plaintiff is claiming possession from the defendant No.1. When the plaintiff has pleaded that as per the demarcation report dated 03.07.1995 the mother of the plaintiff was found in possession of 46x26=1196 sq. ft. and then the plaintiff has enhanced the encroachment by 28x16.6 ft. in its northern side and the suit was filed for the same property, the plaintiff has to plead and prove the exact measurement and its four corners so that the decree can be executed 11 effectively if any decree is being passed in his favour. One more fact is that the plaintiff himself has filed an application for demarcation of his land on 18.02.1985 Ex.D/20, and pursuant to this application, the land was demarcated on 09.04.1985, in which the possession of Smt. Chhaya Bai was found in 2800 sq. Kadi. 20. PW-3, Vijay Ijardar, have also stated in his examination in chief that the plaintiff has given the possession of the house of 1221 sq. ft. of land for which he is claiming vacant possession from the defendant No.1. In cross- examination, he admitted that the plaintiff has not disclosed the measurement of the suit property, but it was approximately 1200 sq. ft. He personally did not know about any demarcation. When the plaintiff has claimed in evidence about 1136 sq. ft., and his witness has stated that the claim of the plaintiff is over 1221 sq. ft., which is self-contradictory with the respect to the actual measurement of the suit property for which the plaintiff is claiming. 21. So far as the relevancy and admissibility of the said demarcation report Ex.P/3 and Ex.P/14 are concerned. The plaintiff examined the revenue inspector M.P. Rathore as PW-2. He is the person who is said to have conducted the demarcation on 25.03.1995 and prepared the demarcation report Ex.P/13 and the list of encroachers Ex.P/14. Though he conducted the demarcation on 25.03.1995, however, a report was prepared on 03.07.1995. He stated in his cross-examination that there is no mention of the presence of Smt. Chhaya Bai in the said documents prepared by him, and no signature of Smt. Chhaya Bai is there; from his evidence, it does not appear that the demarcation was done in the presence of Smt. Chhaya Bai or any notice was issued to her. One more fact which creates doubt upon the said demarcation report Ex.P/3, Ex.P/13 and ExP/14, emerges from the written statement of the defendant No.1 that Smt. Chhaya Bai had died on 14.06.1990, and this fact has not been rebutted by the plaintiff. If Smt. Chhaya Bai died on 12 14.06.1990; she would not have been found in possession of the suit property in the year 1995, when the alleged demarcation was done by the PW-2; however, it has been mentioned in the said demarcation report that Smt. Chhaya Bai was in possession of the suit property. Further, after the demarcation, if the defendant No.1 had handed over the possession of the suit property to the plaintiff, the said demarcation report was diluted, and when the defendant again encroached on the land, the plaintiff ought to have demarcated his land again to prove the encroachment of the defendant No.1, if any. 22. In cases to determine encroachment, it is always desirable to have the disputed suit property measured by competent surveyors to determine encroachment and its extent. In a suit where the parties are disputing boundaries of property or the boundaries and measurement of the property are not clear, and one of the parties alleges encroachment made by the other party to the suit, in such cases, the necessity of a duly drawn measurement plaint/map in any suit in which there is a boundary dispute is required. The learned trial Court, as well as the first appellate Court, which are the court of facts, duty bound to ascertain that a map is drawn to the appropriate scale by the competent Govt. Officer by the department concerned so that the measurement of the suit property is carried out in the presence of the parties after due notice to them, so as to ensure that the suit property is properly measured and boundaries are fixed, and the boundary dispute is finally settled by the Court, in view of the difference in measurement and rival claims of the parties. 23. The claim of the defendant No.1 is that his mother Smt. Chhaya Bai had purchased a house situated over 2310 sq. ft. at village Baikunthpur, District Raigarh, through a registered sale deed dated 25.08.1973, Ex.D/36 and her name was recorded over the land of Khasra No. 141/2, plot No. 5/2, Sheet No. 7. The said house was situated over the Abadi land. When the claim of 13 the defendant No.1 is that he is in possession of the land which her mother had purchased and he is not in any encroachment, there should be a proper demarcation report before passing a decree for vacant possession of the land. 24. In the matter of Haryana Waqf Board vs. Shanti Sarup & Others 2008(8) SCC 671, wherein it has been held that if the controversy is regarding the demarcation of the land between the parties, the Court should direct the investigation by appointing a legal commission. Para 4 and 5 of the aforesaid judgment are relevant to be reproduced herein below: “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 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 unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. Bu the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.” 25. A similar view was taken by the Madhya Pradesh High Court in the case of Durga Prasad vs. Praveen and Others reported in 1975 SCC Online MP 14- AIR 1975 MP 196, and it is held that in the case of encroachment, the appointment of a commissioner for demarcation is the proper course to determine the issue. In this case, the scope of Order 26 Rule 9 of CPC is considered and held that the Court should order for appointment of a commissioner when there is a dispute of encroachment. 14 26. In another case of Jaswant son of Kashi Ram Yadav vs. Deen Dayal, 2011 (2) MPLJ, 576 the Madhya Pradesh High Court has held that: “The moot question to be decided in this appeal is whether the property in question is of Plaintiff or Defendant. Both the parties are claiming ownership right on it. According to the Plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the Defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned Counsel for Defendants to the application filed under Order XXVI, Rule 9, Code of Civil Procedure but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned First Appellate Court has also committed the same error by not allowing the said application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose. In this context I may profitably place reliance on two decisions of Supreme Court Shreepat v. Rajendra Prasad and Ors. (2000) 6 Supreme 389 and Haryana Wakf Board v. Shanti Sharup and Ors. MANU/SC/7838/2008 : (2008) 8 SCC 671 and the Division Bench of this Court in Durga Prasad v. Praveen Foujdar and Ors. MANU/MP/0037/1975 : 1975 MPLJ 801; 1975 JLJ 440.” 27. It is settled law that the parties are required to prove their case by way of evidence, and it is the duty of the plaintiff/defendant to give evidence in support of their case. After the evidence of the parties, if the Court deems it proper that any issue is required to be elucidated or explained or clarified, then the Court may appoint a commissioner, and it can be used for the purpose of appreciating the evidence on record. 28. In the present case, the plaintiff has filed the demarcation Ex.P/3 and Ex.P/14 which was of the year 1995, and in pursuant to the demarcation report the possession was already handed over to the plaintiff; however, for subsequent encroachment there is no demarcation report and the plaintiff is relying upon the earlier demarcation report and based on the said demarcation report the learned trial Court has decree the suit which in the opinion of this Court is erroneous. 15 29. From the record of the learned trial Court, it also transpires that on 27.08.2009, the defendant No.1 filed an application under Order 26 Rule 9 of CPC for demarcation of the suit property, which was not pressed on 24.09.2009. Thereafter, another application for demarcation of the suit land was filed on 12.01.2011, which was dismissed by the learned trial Court on 19.10.2011. 30. It further transpires that the plaintiff had purchased the land of Khasra No. 141/1 area 0.729 hectares, situated at village Baikunthpur, District Raigarh. The mutation of the plaintiff over the land of Khasra No. 141/1/1 area 0.1725 hectare, which reflected from the revenue document Ex.P/4, Ex.P/5 and Ex.P/16. 31. From perusal of the mutation register Ex.D/30, the name of the defendant No.1 is recorded over the land of Khasra No. 141/2/4, sheet No.7, plot No. 5/2, area 2310 sq. ft. From the patwari map annexed with the sale deed Ex.P/1, Ex.D/26 and Ex.D/32, it transpires that Khasra No. 141/1 and 141/2 at village Baikunthpur, District Raigarh are adjoining land and therefore, to decide the real controversy between the parties, the learned trial court ought to have called the demarcation report from the competent revenue officer but the application filed by the defendant No.1 before the learned trial Court was rejected. 32. With respect to the substantial question of law No.2, the learned first appellate Court has upheld the finding recorded by the trial Court by holding that at the time of demarcation the land owners of the adjoining land are to be noticed and not the encroachers. Since the mother of the defendant No.1 was an alleged encroacher, she was not noticed and even if her signature is not there in the demarcation report Ex.P/3 and Ex.P/14, it does not affect the credibility of the demarcation is erroneous. The demarcation of the land is required to be done in the presence of the interested party over the land who was found in possession, and it cannot be done in his absence. The 16 demarcation was said to have been done on 25.03.1995, whereas the demarcation report was submitted on 03.07.1995, and it is found that both the learned Courts below have erroneously considered the demarcation report Ex.P/3 and Ex.P/14. 33. Considering the issues involved in the case and facts and circumstances and also the evidence produced by the parties, this Court is of the opinion that the matter is required to be remitted back to the learned trial Court for deciding afresh after calling a demarcation report by appointing a Commissioner not below the rank of Tahsildar with respect to the respective claim of possession of the parties over the suit property. 34. Accordingly, both these substantial questions of law are decided in favour of the appellant and answered that the learned Courts below have erroneously relied upon the demarcation report dated 30.07.1995 (correct date is 03.07.1995 Ex.P/3 and Ex.P/13) and held that the defendant No.1 is in encroachment over the land of Khasra No. 141/1 and recorded the perverse finding. 35. Consequently, the appeal filed by the appellant is allowed. The impugned judgment and decree passed by the learned trial Court as well as the first appellate Court are set aside, and the matter is remitted back to the learned trial Court for deciding the case afresh after affording an opportunity of hearing to the parties, to amend their respective pleadings and to adduce their oral and documentary evidence in support of their case, if any. The learned trial Court shall also call the demarcation report from the revenue authorities with respect to the subject property by appointing a Commissioner not below the rank of Sub Divisional Officer (Revenue). 36. The Registry is directed the send back the record of the trial Court as well as the first appellate Court to the Court concerned immediately. The parties are directed to appear before the concerned trial Court on 19.12.2025. 17 37. It is made clear that this Court has not expressed anything on the merits and the trial Court shall decide the case after due appreciation of the evidence without being influenced by the observation made hereinabove. 38. The appeal is allowed. Parties to bear their own cost. Sd/- (Ravindra Kumar Agrawal) Judge Alok