1 2025:CGHC:48002 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 650 of 2018 Amitabh Paul, S/o. Dr. A. K. Paul, aged about 44 years, R/o. Shri Lodge, Main Road, P. S. and Tahsil Saraipali, District Mahasamund, Chhattisgarh. --- Appellant versus 1 – Seetaram, S/o. Chamru, aged about 60 years, Caste Gond, R/o. Village And Post Saraipali, P. H. No. 9, P. S. And Tahsil Saraipali, District Mahasamund, Chhattisgarh. 2 - State of Chhattisgarh, through : the Collector, Mahasamund, District Mahasamund, Chhattisgarh. --- Respondents ____________________________________________________________ For Appellant : Mr. Sunil Sahu, Advocate For Respondent No.1 : Mr. Ravindra Sharma, Advocate For Respondent No.2/State : Mr. Aman Tamboli, P.L. Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 18/09/2025 1. Appellant/defendant by this appeal have questioned the legality and sustainability of the impugned judgment and decree dated 30.10.2018, passed in Civil Suit No.1-A/2016, whereby learned Additional District Judge, Saraipali, District – Mahasamund has allowed civil suit filed by plaintiff/respondent No.1. 2. Facts relevant for disposal of this appeal are that plaintiff/respondent No.1 filed a civil suit for declaration of title and for possession of the suit land bearing Kh. No.21/01, P.C. No.09, R.I. Circle and Tahsil Saraipali, District – Mahasamund pleading therein that he being the servant of village Jhakhar was allotted land bearing Kh. No.21/1 BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.11.04 10:25:06 +0530 2 measuring 0.403 hectare by the State Government under bhumi swami rights, which is recorded in revenue records in his name. Defendant’s hotel in the name of Krishna Palace was situated on Abhapur Road at Saraipali. Kh. No.21/1 is an adjoining land to the Krishna Palace Hotel upon which defendant No.1 has erected the boundary wall, which came to his knowledge when he got his land demarcated by filing an application before Tahsildar. Demarcation was conducted on 04.06.2015 by Revenue Inspector and submitted its report mentioning that on part of the land bearing Kh. No.21/1 recorded in name of plaintiff, defendant No.1 is in unauthorized possession. 3. Defendant No.1 submitted written statement denying the pleadings made in the plaint and it was pleaded that from the land belonging to the State Government bearing Kh. No.21, part of the land measuring 0.203 hectare was allotted to Kumbhkaran and his Kh.No. was 21/5. It is also pleaded that in the Kishan Kitab/Rin Pustika Khasra bearing No.892, Kh.No.21/1 is not mentioned and the suit is filed by the plaintiff based on the revenue entries made in his name. Plaintiff was never owner and possessor of land bearing Kh.No.21/1 measuring 0.405 hectares. Wife of defendant No.1 purchased land bearing Kh. No.23/9 and 23/2. It was diverted vide order dated 18.04.2014 by competent authority thereafter, wife of defendant has obtained permission from Nagar Panchayat Saraipali for construction of Krishna Palace Hotel on Kh.No.23/9. Adjoining land to Krishna Palace Hotel is of Samaru. Defendant No.1 has made an oral agreement to purchase the land owned by Samaru and Kumbhkaran and has constructed wall over the land owned by Samaru and Kumbhkaran. The land bearing 3 Kh. No.21/1 is not adjoining to hotel constructed by his wife Anamika Pal. Information/Notice of demarcation was not given to defendant No.1 or his wife. Kh. No.21/1 was earlier declared as Kabja Kast land and was allotted by State Government. Because of erroneous entry made in the revenue records, plaintiff has taken undue advantage and filed the suit. 4. Learned trial Court framed as many as three issues for consideration, which is as under :- “1. Whether the plaintiff is the legal title holder of the land bearing Kh.No.21/1 measuring area 0.403 hectares, situated at Village- Saraipali, Tahsil Saraipali, District – Mahasamund? 2. Whether the plaintiff is entitled to obtain vacant possession of the portion marked in red ink in schedule ‘A’ attached to the plaint in respect of the aforesaid suit land by demolishing the concrete wall built therein? 3. Aid and expenditure?” 5. After conclusion of trial upon appreciation of documentary and oral evidence brought on record by respective parties, decreed the suit in favour of plaintiff. 6. Learned counsel for appellant would submit that in the pleadings of written statement filed by defendant No.1/appellant, herein categorical mentioned that land allotted in favour of plaintiff bearing Kh. No.21/1 measuring 0.405 hectares in the name of Sitaram was cancelled by Collector in suo motu proceedings. He also referred to the pleadings made by State i.e. defendant No.2 in similar line. He contended that 4 though the application was filed seeking certified copy of the order of the Collector, but it was not supplied to defendant No.1, therefore, he has moved an application before the learned Trial Court for calling of the records of the Collector cancelling the allotment of patta in favour of plaintiff, which was erroneously rejected, against which WP(227) 661/2018 was filed, however during pendency of this writ petition, civil suit was disposed of, therefore, the petition was disposed of, reserving liberty to file fresh application U/s. 13 Rule 10 of C.P.C.. He also contended that demarcation report, which was relied upon by learned Trial Court was erroneous as it was without giving notice upon defendant No.1 or his wife. No notice was given to nearby land owners, therefore, the demarcation report itself is defective and could not be relied upon for ascertaining possession of a person or alleged encroachment made by defendant No.1. He submitted that in Kisan Book filed by plaintiff Ex.D-21 and D-22, there is no entry of land subject matter of the dispute as Kh. No.21/1. The entry of disputed land in B-1 is also not there so as to prove title of the plaintiff. He contended that unless and until plaintiff proved his title, he cannot maintain the suit for removing possession of defendant No.1. He also submits that owner of Krishna Palace Hotel i.e. Anamika Bal is necessary party, however, she was not impleaded as party, therefore, the suit suffers from non-joinder of necessary parties. 7. Learned counsel for respondent No.1/plaintiff would oppose the submission of learned counsel for appellant/defendant and submits that plaintiff pursuant to allotment of land by State Government, is in possession of land bearing Kh. 21/1 measuring 0.403 hectares. He contended that it is not the case of the plaintiff that Krishna Palace 5 Hotel which was in the name of wife of defendant No.1 was constructed over the land owned and possessed by the plaintiff but in the plaint it is clearly pleaded that boundary wall constructed by defendant No.1 including the land owned and possessed by the plaintiff of Kh.No. 21/1. He pointed out that the land over which boundary wall was constructed was not owned by defendant referring the pleading made in the written statement and also in the evidence of Samaru (D.W.-2) and Gopal (D.W.-3). These witnesses have stated that the land was recorded in their name and they have only given permission to use their land and based on which defendant No.1 has constructed boundary wall, however encroaching the land of plaintiff also. To controvert the submission of learned counsel for appellant that demarcation proceeding is erroneous for want of notice to the nearby land owners, he submits that witness Gopal (D.W.-3), who is nearby land owner and Suresh Kumar Samal (D.W.-5), who is Patwari, in their evidence have clearly stated that they are present at the time of demarcation, therefore, submission of learned counsel for appellant has no legs to stand. It is contended that the land is recorded in the revenue record in name of plaintiff since 1974 continuously and in this regard Khasra Panchshala is filed as Ex. P-6, P-7 and P-8 uptill 2015- 16 was also exhibited. Copy of B-1 of the year 2014-15 is also filed as Ex.P-1, which shows that land after allotment to the plaintiff by State Government is recorded in the name of plaintiff in revenue records and thereby, he was in possession. Learned trial Court upon appreciation of the documentary and oral evidence, decreed the suit in favour of plaintiff, which does not call for any interference. In support of his contention, he red over the deposition of Gopal (D.W.-3) and Suresh 6 Kumar Samal (D.W.-5) i.e. owner of adjoining land/nearby land and Patwari to submit that there is no discrepancies in the physical records and the records maintained in the online. 8. Learned State counsel submits that the State Government in reply have specifically pleaded that the land allotted to the plaintiff was cancelled by order of the Collector in suo motu revision proceedings, however, upon asking as to whether the copy of order is produced before the trial Court after perusing the impugned judgment, he submits that there is no such mention in the impugned judgment. 9. I have heard learned counsel for parties and perused record of trial Court. 10. Perusal of plaint would show that plaintiff in para-4 has specifically pleaded that the land bearing Kh. No.21/1 measuring area 0.403 hectare was allotted to him by the State Government under Bhumiswami right and it was recorded in his name in the revenue records and further that the defendant No.1 has encroached upon his land by erecting boundary wall on his entire land. There is also clear pleading that Krishna Palace Hotel is on different land. Land of plaintiff was adjoining to the Krishna Palace Hotel. Plaintiff got his land demarcated by submitting an application before the Tahsildar on 04.06.2015 and according to demarcation report, the defendants have encroached upon the land of plaintiff by covering it with pakka boundary wall constructed with bricks and cement. 11. In support of his pleadings made in plaint, plaintiff has examined Sitaram (himself) as (P.W.-1), Ramcharan (P.W.-2), Ganpat Patel (P.W.-3), Baliram Verma (P.W.-4) and has exhibited Kistbandi Khatauni 7 of the year 2014-15 (Ex.P-1), Khasra of of the year 2015-16 (Ex.P-2), map dated 11.08.2015 (Ex.P-3), demarcation compliance report (Ex.P- 4), Panchnama (Ex.P-5), Khasra panchshala of the year 2011-12 (Ex.P-6), Kistbandi B-1 of the year 1979-80 (Ex.P-7), Khasra Panchshala of the year 1974-75 to 1975-76 (Ex.P-8) and map of the year 1929-30 (Ex.P-9). 12. 12. Sitaram (P.W.-1) in his evidence in chief filed in shape of affidavit under Order 18 Rule 4 of C.P.C. has stated that he was working as Village- Servant and in lieu of it he was allotted land measuring 7.958 hectares in 16 khasara numbers out of 16 khasara, one khasara number is 21/1, which is measuring 0.403 hectares. The lands were recorded in his name. The land, subject matter of the suit was allotted to him by the State Government and on the date of his examination, it was recorded in his name in the revenue records. In examination-in- chief, he stated according to the pleadings made in the plaint. In cross- examination, he admitted that Kishan Kitab was also prepared by revenue officials of the land, subject matter of the dispute. He denied the suggestion given to him by defendant’s counsel that his name is recorded due to error while entries made in computer. Perusal of Kistbandi Khatauni (Ex.P-1) dated 20.08.2015 would show that name of plaintiff is recorded as bhumiswami/government patta holder of land bearing Kh. No.21/1 measuring 0.405 hectares as also in khasra of the year 2015-16 (Ex.P-2). Map issued under signature of Revenue Inspector, land bearing Kh. No.21/1 is also clearly mentioned which is adjoining to the land bearing Kh. No.21/2, 23, 22 and 19/2. Ex.P-4 is the demarcation compliance report issued under signature of Revenue Inspector clearly mentioning that land bearing Kh. No.21/1 measuring 8 0.405 hectare was demarcated in pursuant to the order issued by the Tahsildar. Notice to the nearby land owners were issued and after demarcating the land with due procedure, boundaries of the land were intimated and marks were also put. It also mentions that in the disputed land, part of hotel is constructed. Panchnama (Ex.P-5) records that at the time of demarcation, revenue officials in presence of nearby land owners, found that the land of plaintiff was encroached by defendant No.1 by erecting boundary wall over it. 13. Ramcharan (P.W.-2) in his examination-in-chief stated that plaintiff had submitted an application for demarcation before Tahsildar. He went on spot on the call of Revenue Inspector and Patwari and has helped them in demarcating the land bearing Kh. No.21/1 measuring 0.405 hectares and found that entire land was encroached upon by defendant No.1. In para-8 of his cross-examination, this witness clearly stated that he was called by Revenue Inspector by giving notice. He also stated that at the time of demarcation, defendant No.1 was present. The land covered with boundary wall was locked on gate. In para-10, he stated that he is educated up to Class - 5th and he is Kotwar of Saraipali. He also stated that for purpose of demarcation, revenue officials have brought B-1 Khasra and map, obtained from computer. 14. Ganpat Patel (P.W.-3) made statement supporting the pleadings of plaint. In para-11 of cross-examination he stated that he is not having land recorded in his name near the disputed land. He has not seen the disputed land before demarcation and further stated that Patwari at the time of demarcation has informed that the land which is sought to be 9 demarcated is inside the boundary wall. He also stated that at the time of demarcation, plaintiff called him and took him to the spot. He also stated that at the time of demarcation, hotel Krishna Palace was constructed and boundary wall was also erected surrounding Krishna Palace Hotel. 15. Baliram Verma, Revenue Inspector is examined as (P.W.-4). He admitted that he demarcated the land bearing Kh. No.21/1 measuring 0.405 hectares of applicant – Sitaram, S/o. Chamaru in pursuant to the order of Tahsildar. He also clearly stated that at the time of demarcation, he found that land bearing Kh. No.21/1 was inside the boundary wall and proved (Ex.P-4). He also stated that on the date of demarcation i.e. 04.06.2015, the persons present on spot have signed panchanama and further admitted that defendant No.1 was not present. 16. Defendant No.1 in support of the written statement has placed in record the copy of sale deed (Ex.D-1) in which the name of seller is mentioned as Noorpati, Lobhan Singh, Motiram, Sumitra, Ravishankar and purchaser name is mentioned as Smt. Anamika Paul, W/o. Amitabh Paul. Amitabh Paul is defendant No.2. The land, subject matter of sale deed (Ex.D-1) is having Kh. No.23/9 measuring 0.051 hectare. Ex.D-2 is another sale deed executed by Harishanker (seller) in favouur of Animika Paul, W/o. Amitabh Paul of land bearing Kh. No.23/2, measuring 0.051 hectares. Khasra panchshala part of Ex.D-6 would show that it is of the land bearing Kh. No.21/2 and 21/4. Ex.D-7 is an order of demarcation by the competent authority on 18.04.2013 of the land bearing Kh. No.23/9 and 105/4 for residence. Ex.D-10 is 10 sanction for construction of building dated 04.05.2013 on the land bearing Kh. No.23/9 measuring 2603 sq.ft. 17. Defendant No.1 is examined as (D.W.-1). In affidavit filed under Order 18 Rule 4 of C.P.C., he stated that he purchased the land bearing Kh. No.23/9, measuring 0.051 hectare vide registered sale deed dated 14.12.2009 and land bearing Kh. No.23/2 measuring 0.05 vide registered sale deed dated 11.11.2013 in name of his wife and obtained permission for building construction which was granted to him on 04.05.2013 and constructed Krishna Palace Hotel on land bearing Kh.No. 23/9. He also entered into an agreement to purchase the land adjoining to the Krishna Palace Hotel of Samaru, S/o. Muni and Kumbhkaran and constructed boundary wall of bricks. 18. From document Ex.D-28, it appears that land recorded in the name of Samaru is bearing Kh. No.21/2 and 21/4. The land of Kumbhkaran bears Kh. No.21/5. The land subject matter of the dispute and suit is land bearing Kh. No.21/1, which is not owned and recorded in name of Samaru or Kumbhkaran. 19. From the evidence of the Amitabh Paul (D.W.-1), it is apparent that hotel was constructed on different land bearing Kh. No.23/9. There is no evidence of defendant No.1 that he was allotted or purchased or agreed to purchase the land bearing Kh. No.21/1, which is the disputed land. In para-7 of examination-in-chief he made an attempt to make statement that the land bearing Kh. No.21/1 is erroneously recorded in name of plaintiff due to error in the computer entry, which cannot be said to be correct in view of the documents Ex.D-28 issued by Halka Patwari, who is custodian of the revenue records, till any 11 other order is passed. Even otherwise it is not a case of defendant that the land in disputed is not in his possession. The demarcation report and panchnama was not put to challenge by defendant No.1 even after getting the knowledge by way of filing suit. 20. In cross-examination Amitabh Paul (D.W.-1) further stated that he has not entered into an agreement of purchase nor purchased the land bearing Kh. No.21/1 from Sitaram. In para-12 of his cross-examination he admitted that he had submitted an application in Tahsil Office for deleting name of plaintiff from the land bearing Kh. No.21/1 and it is pending. 21. In para-20 of his cross-examination, he admitted that the land bearing Kh. No.21/1 to 21/5 is Jhakhari land (Govt. land). He also stated that he is not aware as to in whose name, land bearing Kh. No.21/1 is recorded. In para-16 he further admitted that land bearing Kh. No.21/1 is recorded in name of Sitaram, S/o. Chamaru (plaintiff), Kh. No.21/2 in the name of Samaru, Kh. No.21/3 and 21/4 in the name of Samaru, 21/5 in name of Kumbh Karan. From his evidence also, it is appearing that land bearing Kh. No.21/1 to 21/5 recorded as Jhakhari land in revenue record is allotted to different person and plaintiff is one of person, who was allotted land bearing Kh. No.21/1 measuring 0.405 hectare as pleaded in the plaint as also evident from the documents Ex.D-28 issued by the Patwari. 22. Learned trial Court upon appreciating the evidence available on record held that defendant No.1 in his evidence has admitted that he has not entered into an agreement to purchase or purchased the land bearing Kh. No.21/1 from Sitaram, plaintiff. 12 23. Gopal (D.W.-3), S/o. Kumbhkaran in para -12 of his cross-examination admitted that at the time of demarcation of the land bearing Kh. No.21/1, Revenue Inspector, Patwari, Kotwar, he and Samaru were present. Samaru and Kumbhkaran are owner of nearby lands. 24. Harishankar (D.W.-4) and Gopal (P.W.-3) though stated that the land bearing Kh.No.21/1 was allotted in name of Kumbhkaran and Balbhadra, however, no document is placed before the trial Court, whereas according to the documents produced before the trial court issued by the revenue officials mentioning the name of plaintiff Sitaram against the land bearing Kh. No.21/1.` 25. Patwari Suresh Kumar Samal is examined as (D.W.-5). In para-5 of cross-examination, he stated that defendant No.1 Amitabh is not owner of the land bearing Kh. No.21/1 to 21/5. He admitted his signature on the demarcation panchanama (Ex.P-5). He also admitted that in Ex.P-5, there is signature of plaintiff, Sitaram, Revenue Inspector, Damarudhar and according to khasra records, Sitaram is owner of land bearing Kh. No.21/1 as bhumiswami. He also admitted that in Khasra panchsala (Ex.P-6) name of plaintiff is mentioned as Bhumiswami of Kh. No.21/1. In para 6 he also admitted that Khasra Panchshala, B-1 and map was issued on 25.10.2010 and there is no mention of discrepancies in record. Further accepted that the said documents were issued after his transfer. In para-9 he also stated that if the land bearing Kh. No.21/1 is not of plaintiff or defendant No.1, then it will be a government land. 26. Learned trial Court has also recorded that there is no evidence in record of allotment of land Kh. No.21/1 measuring 0.405 hectare was 13 canceled and thereafter allotted to Kumbhkaran or Balbhadra, which cannot be said to be perverse based on the document exhibited by the respective parties including copy of revenue records showing the name of plaintiff to be recorded owner of the land bearing Kh. No.21/1. Learned trial Court has recorded a finding that plaintiff succeeded in proving his title over the disputed land and upon appreciating the evidence documentary and oral including the demarcation compliance report (Ex.P-4) and demarcation panchnama (Ex.P-5) based on the order of Tahsildar that the defendant No.1 has encroached upon and constructed the boundary wall, which in the opinion of this Court is on proper appreciation of the facts and evidence available in record of the trial Court, therefore, it does not call for any interference. Judgment and decree passed by the learned trial Court is upon proper appreciation of the facts and evidence hence, it does not call for any interference. 27. For the forgoing discussion I do not find any good ground to interfere with the impugned judgment and decree. The appeal being sans merit, which is liable to be and it is hereby dismissed. 28. Decree be drawn accordingly. Sd/- (Parth Prateem Sahu) Judge Balram