1 2025:CGHC:41705 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 180 of 2009 1. Kanhaiya Patel S/o Late Harishchandra Patel, aged about 45 years, R/o Village - Kankeedeepa, Thana - Baramkela, District - Raigarh (C.G.) 2. Nanhu Babu Patel S/o Shri Babulal Patel, aged about 35 years, R/o Village - Mendra, Thana - Baramkela, District - Raigarh (C.G.) 3. Sugreev Prasad Patel S/o Shri Dayaram Patel, aged about 35 years, R/o Village & Post - Gobarsingha, Thana - Saria, District - Raigarh (C.G.) 4. Jhasketan Patel S/o Shri Balakram Patel, aged about 30 years, R/o Village - Dewanpali, Thana - Baramkela, District - Raigarh (C.G.) 5. Netram Naik S/o Shri Raghuvar Naik, aged about 50 years, R/o Village & Post - Kodpalla, Thana - Aamabhauna, Tahsil - Bhathali, District - Bargarh (Orrisa) ... Appellant(s) versus 1. Ghurau Patel S/o Late Harishchandra Patel, aged about 55 years, R/o Village - Kankeedeepa, Post & Thana - Baramkela, District - Ragiarh (C.G.) 2. Uddav Patel S/o Ghurau Patel, aged about 36 years, Occupation - Agriculture & Service, R/o Village - Kankeedeepa, Post & Thana - Baramkela, District - Ragiarh (C.G.) ... Respondent(s) For Appellant(s) : Mr. Roop Naik, Advocate For Respondent(s) : Mr. S.N. Nande, Advocate MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.09.30 16:15:06 +0530 2 Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 19.08.2025 1. This is defendant’s first appeal under Section 96 of Code of Civil Procedure, 1908 against the judgment and decree dated 24.09.2009 passed by the learned Upper District Judge Sarangarh, District - Raigarh (C.G.) in Civil Suit No. 3B/2007 by which the learned trial Court has decreed the suit filed by the plaintiffs and directed for payment of Rs. 53,657/- alongwith 5% interest from the date of filing of the suit to the plaintiffs for the damages caused by the defendants on the house of the plaintiffs. 2. Brief facts as reflected from the record are that: (a) The plaintiff No. 1 and defendant No. 1 are real brothers. It is the case of the plaintiffs that due to family dispute between the plaintiffs and defendants, a partition has already been taken place about 30-32 years ago between the plaintiffs and defendants during life time of their father. The defendants No. 2 to 5 are the close friends of the defendant No. 1 who have committed the criminal trespass and caused damages to the plaintiffs’ property. It is also the case of the plaintiffs that the plaintiffs having house situated at Khicharidarhar one Tikra, Khasra No. 11/6 area 14 dismil, village Kankeedeepa, Patwari Halka No. 43, Police Station BaramKela, District Sarangarh and also constructed courtyard in the south of the suit property. The plaintiff No. 2 has purchased land which is in North direction of the said property bearing Khasra No. 131/1 area 3 dismil through registered sale deed on 3 19.12.2006 wherein he has constructed a courtyard about 35 feet length and 10 feet width which comes to 350 sq.ft. after making expenditure to the of Rs. 50,000/- and the construction was completed on 15th February, 2007 which has been described in Schedule “A” of the plaint. 3. The defendant No. 1 alongwith other 10-12 persons have forcefully caused damages to the suit property by various hammers, axes, sticks, crowbar and turnip shovel and also threatened the victim, as such, the plaintiff and his family members rescued themselves and thereafter, they have made an FIR before the police station. On the basis of report a crime being Crime No. 21/2007 was registered under Section 147, 148 and 427 of IPC against the defendant and his associates. Due to illegal act committed by the defendants and other friends the plaintiff’s suit property caused damages, therefore, he has filed present suit for damages and claiming damages to the tune of Rs. 75,000/-. 4. The defendants denying the allegations made in the plaint mainly contending that the amount has been shown on a higher side and they are not responsible for causing damages to the property. It has been contended that false allegations have been levied against them and has prayed for dismissal of the suit. 5. The learned trial Court on the pleadings of the parties has framed as many as 4 issues which are extracted below as under: “1- D;k oknhx.k }kjk fufeZr edku ds ckgjh ijNh xyh xyh {ks=Qy 350 oxZQhV dk oknhx.k }kjk 50]000@& :i;s ds O;; ls iDdk ysaVj okyk rS;kj fd;k x;k Fkk\ 2- D;k izfroknhx.k us mDr ijNh dks vukf/kd`r :i ls izfroknhx.kks ds }kjk rksM+&QksM+ dj oknhx.k dks 50]000@& :i;s dh fjf"V dkfjr dh x;h\ 4 3- D;k oknhx.k 75]000@& :i;s dh {kfriwfrZ ¼fjf"V /kujkf’k½ izfroknhx.k ls la;qDrr% ,oa i`Fkdr% izkIr djus ds vf/kdjh gS\ 4- lgk;rk ,oa O;;\” 6. The plaintiffs to substantiate their evidence has exhibited documents: Copy of first order sheet (Exhibit P/1), Copy of final report (Exhibit P/2), Copy of First Information Report (Exhibit P/3), Copy of Spot Map (Exhibit P/4 to Exhibit P/5), Property Seizure Memo (Exhibit P/6), Copy of Damages Panchnama (Exhibit P/7), Copy of order dated 17.10.2005 (Exhibit P/8), Rod purchase receipt (Exhibit P/9 to P/10), Copy of Kishtbandi Khatauni (Exhibit P/11 to P/12) and Certificate (Exhibit P/13). The plaintiffs to substantiate their case has examined plaintiff No. 1 Ghurau Patel (PW-1), Madhanu Chauhan (PW-2), Hiralal (PW-3), Shivlal (PW-4) and Shaukilal (PW-5). 7. The defendant examined himself as per Order 18 Rule 4 of CPC as DW-1, Bharatlal Patel (DW-2), Ramchand Patel (DW-3). 8. The trial Court after appreciating the evidence and material on record has recorded its finding that the defendants have caused damages to the suit property of the plaintiffs for which a charge- sheet has also been filed before the criminal Court. The learned trial Court has also recorded its finding that defendant No. 1 has admitted that all the defendants No. 2 to 5 are relatives of defendant No. 1. The eye witnesses of the case Hiralal (PW-3) and Shivlal (PW-4) have also supported the case of the plaintiffs which has not been rebutted by the defendants accordingly, it has passed the decree of Rs. 46,657/- for causing damages to the suit property. The learned trial Court has also assessed the 5 compensation for mental agony and torture caused to the plaintiffs by the conduct of defendants to the tune of Rs. 7000/- accordingly, it assessed the damages to the tune of Rs. 53,657/- with 5% interest from the date of filing of the suit till the payment is actually made and if no amount was given to the plaintiffs by 24.11.2009, then the plaintiffs are entitled to recover the said amount with 7% interest. Being aggrieved with this judgment and decree, the defendants have preferred this first appeal before this Court. 9. This Court while admitted the first appeal has granted interim protection to the plaintiffs on 23.11.2009 and has directed to deposit the entire amount to the trial Court within 2 months from today and the disbursement of the same shall remain stayed till the next date of hearing, but the same amount was not deposited timely. The defendants deposited the amount subsequently, as such thereafter, no interim stay was ordered by this Court and accordingly appellants have moved an application for withdrawal of the amount which has been allowed and during pendency of the appeal, the amount has been withdrawn by them. 10. Learned counsel for the appellants would submit that the trial Court has committed illegality and without proper appreciation of material on record has passed the impugned judgment and decree. He would further submit that the supplier of the material Mr. Krishna Agrawal who has alleged to supply the material has not been examined before the trial Court who was relevant witness to throw the light on the issue what material he has supplied for construction of 350 sq.ft. to assessed actual damages caused to the plaintiff. He would further submit that since Mr. Krishna 6 Agrawal has not been examined by the defendants, therefore, adverse inference should have been drawn against the plaintiffs and trial Court should have dismissed the suit. He would further elaborate his submission and would submit that non-examination of the vital witness goes to the root cause of the case, therefore, he would submit that the appeal be kindly allowed and judgment and decree of the trial Court be set aside. 11. Per contra, Mr. Nande, learned counsel for the respondents would support the judgment and decree and would submit that the trial Court after appreciating evidence, bills submitted by the plaintiffs has recorded a finding which is neither perverse nor suffers from perversity or illegality. Even the documents have been exhibited during trial of the case and no objection regarding submission of the documents has been taken, therefore, at this juncture the plaintiffs cannot take such plea questioning the authenticity and genuineness of the documents which have been duly exhibited and proved. Thus, he would pray for dismissal of the appeal. 12. I have heard learned counsel for the parties and perused the record with utmost satisfaction. 13. Considering the evidence of the PW-1, PW-2 and PW-4 and area which has been constructed i.e. 350 sq.ft. and the same has not been rebutted by the defendants by producing sufficient material on record. It is also not rebutted by the defendants that the defendants have caused damages by axes to the suit property and bills of material used for construction is already placed on record, therefore, it cannot be said that non-examination of Mr. Krishna 7 Agrawal an adverse inference should have been drawn by the trial Court against the plaintiffs. Thus, learned trial Court after appreciating the evidence and material on record has given its finding which neither suffers from perversity nor illegality warranting interference by this Court. 14. Therefore, the first appeal is liable to be dismissed and accordingly, it is dismissed. No order as to costs. 15. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Manish