1 2025:CGHC:34799 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 130 of 2018 1. Om Prakash Gupta S/o Late Shri Sukhdev Prasad Gupta Aged About 63 Years R/o Village Lalpur Ward No.5, P.H.No. 22, R.I.C. Khallari, Tahsil Bagbahra, District Mahasamund, Chhattisgarh, District : Mahasamund, Chhattisgarh 2. Smt. Mamto Bai W/o Late Shri Sukhdev Prasad Gupta Aged About 86 Years R/o Village Lalpur Ward No.5, P.H.No. 22, R.I.C. Khallari, Tahsil Bagbahra, District Mahasamund, Chhattisgarh (Plaintiffs), District : Mahasamund, Chhattisgarh ... Appellant(s) versus 1. The Chief Municipal Officer Nagar Panchayat Bagbahra, District Mahasamund, Chhattisgarh, District : Mahasamund, Chhattisgarh 2. State Of Chhattisgarh Through The Collector, Mahasamund, District Mahasamund, Chhattisgarh (Defendants), District : Mahasamund, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Anjali Pradhan, Advocate For Respondent State : Mr. Tarkeshwar Nande, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 22.07.2025 1. Heard on admission. 2. The appellants have filed this second appeal against the judgment and decree dated 16.01.2018 passed by the learned District Judge, MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.09.30 16:15:06 +0530 2 Mahasamund, District - Mahasamund (C.G.) in Civil Appeal No. H- 16-A/2016 by which the first appeal filed by the plaintiffs has been dismissed against the order dated 17.06.2016 passed by the learned First Civil Judge Class-I, Mahasamund, District - Mahasamund (C.G.) in Civil Suit No. 08-A/2013. 3. The parties have been described as per their description in Civil Suit No. 08-A/2013. 4. Brief facts as reflected from the record are that: (a) The plaintiffs filed civil suit for declaration of title and injunction before the learned First Civil Judge Class-I, Mahasamund, District - Mahasamund (C.G.) mainly contending that the land bearing Khasra No. 211 area 0.180 hectare and Khasra No. 212 area 0.438 hectare situated at village - Bhanpur, Patwari Halka No. 119/22, Rajasva Nirikshak Mandal - Khallari, Tahsil- Bagbahra, District - Mahasamund (C.G.) has allegedly recorded as grass land which has been mentioned in Schedule - “A” of the plaint (hereinafter referred to as “suit land”). Whereas the suit land is recorded in the revenue records in their names since 1975-76 and they are still in possession of the suit property wherein they are doing agricultural work. It is also the case of the plaintiffs that the member of local bodies have forcefully taken possession over the suit property with an intention to construct children park and they have constructed children park in the two acre of the land only and rest of the land was used for dumping garbage. (b) It has also been contended that the defendants have promised 3 them for execution of lease in their favour, but they have not fulfilled with their commitment. It has also been contended that the plaintiffs are in possession of the suit property, therefore, they are entitled to get declaration of title on account of adverse possession. (c) The respondent No. 1 Chief Municipal Officer, Municipal Corporation Bagbahra, District - Mahasamund filed written statement denying the possession of the plaintiffs over the suit property and it has denied that the plaintiffs are in the possession of the suit property since 1975-76 and in fact its a Government land and recorded in the grass land in the revenue records, the land is required for public purpose and have prayed for dismissal of the suit. (d) On the pleadings of the parties, the learned trial Court framed as many as three issues, which reads as under: ^^1- D;k xzke Hkkuiqj ds iVokjh gYdk uacj&119@22 jk0fu0ea0 [kYykjh] rglhy ckxckgjk] ftyk&egkleqan fLFkr 'kkldh; ?kkl Hkwfe [kljk uacj&211 jdck 0-180 gsDVs;j] [kljk uacj&212 jdck 0-438 gsDVs;j dqy jdck 0-618 gsDVs;j Hkwfe ij 40 o"kksZ ls 'kkafriw.kZ vkf/kiR; gksus ds dkj.k oknh dk izfrdqy vkf/kiR; ds vk/kkj ij LokfeRo ifjiDo gks x;k gS\ ;fn gkW] rks izHkko\ 2- D;k oknh dks mijksDr oknxzLr Hkwfe ls csn[ky djus gsrq izfroknhx.k }kjk dksbZ voS/kkfud iz;kl fd;k tk jgk gS\ ;fn gkW] rks D;k mDr oknxzLr Hkwfe ls oknh dks csn[ky djus ds fo:) LFkk;h fu"ks/kkKk tkjh fd;k tkuk mfpr gS\ 3- lgk;rk ,oa O;;\** (e) The plaintiffs examined themselves and also exhibited documents as: Khasra Panchshala (Exhibit P/1 to P/5), Registered Notice (Exhibit P/6), Acknowledgment (Exhibit P/7), 4 Application (Exhibit P/8), Memorandum (Exhibit P/9), Receipt of application (Exhibit P/10), Acknowledgment of Memorandum (Exhibit P/11), Acknowledgment of application (Exhibit P/12), Acknowledgment of information (Exhibit P/13), Khasra Panchshala (Exhibit P/14), Patwari Map (Exhibit P/15) and Khasra Panchshala (Exhibit P/16). The defendant examined witnesses and also exhibited documents from D1 to D16; (f) The learned trial Court on appreciation of evidence and material on record has decided the issues No. 1 and 2 against the plaintiffs and accordingly it has dismissed the suit. The learned trial Court while dismissing the suit has recorded its finding that the title of the plaintiffs cannot be established on the basis of adverse possession and also there is no material has been placed on record to establish that they were forcefully or illegally evicted from the suit premises. Being aggrieved with the dismissal of the suit, the plaintiffs have preferred first appeal before the learned First Appellate Court and the learned first appellate Court vide its order dated 16.01.2018 has dismissed the civil appeal after affirming the finding of the trial Court that the plaintiffs are unable to establish that they are in physical possession of the suit property, therefore, they cannot claim decree of title on the basis of adverse possession as the possession is permanent consideration for obtaining the decree on the basis of principle of adverse possession. Being aggrieved with this judgment and decree passed by the first appellate Court, the plaintiff has preferred present second appeal. 5 5. Learned counsel for the appellants would submit that the learned both the Courts below have committed illegality in not recording their findings that the plaintiffs have proved adverse possession by sufficient evidence as the plaintiffs have established that they are in possession of the suit property since more than 40 years peacefully and without hindrance from others and they have also proved that the land is a Government grass land and have not denied the title of the defendants No. 1 and 2, therefore, they are entitled to get decree of possession of land and would pray for admission of appeal as perversity in findings of the both the Courts below exist, therefore, a substantial question of law is required to be made. 6. Learned State counsel opposing the submission made by the learned counsel for the appellants would submit that the order passed by the learned trial Court as well as first appellate Court are just and proper and do not warrant any interference by this Court and would pray for dismissal of the appeal. 7. I have heard learned counsel for the appellants as well as counsel for the State who is representing on behalf of respondent No. 2 and perused the record of both the Courts below with utmost circumspection. 8. Considering the fact that for obtaining decree of title on the basis of adverse possession, the plaintiffs must plead and prove that they were in actual possession of the suit property, without denying the title of others and his possession is known to the person whose property has claimed by him through adverse possession. These are the basis requirement to be proved by the person who is 6 claiming title on the basis of adverse possession. From the evidence and material on record, it is quite vivid that the plaintiff has pleaded that the suit property is a grass land and he is in possession of the suit property for last 40 years, thus he has fulfilled the requirement of grant of title on the basis of adverse possession, this submission of the learned counsel for the appellants deserves to be rejected as the plaintiff is unable to establish that how he was in physical possession of the suit property. The learned first appellate Court while dismissing the appeal has recorded its finding of fact that the plaintiffs have not produced any documents how they were in possession of the suit property, whether they have done agricultural work on the suit land and there is any attempt is made out by anyone to remove them from the said land, no material is placed by the plaintiffs, therefore, I am of the view that the finding recorded by the learned trial Court and affirmed by the learned first appellate Court that the plaintiff is unable to establish that he is in possession of the suit property is concurrent finding of the fact which is not liable to be interfered by this Court, as such, no substantial question of law exists which is sine-qua-non for admission of the second appeal and the second appeal is liable to be dismissed and accordingly, it is hereby dismissed. No order as to costs. 9. No order as to costs. 9. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Manish