1 2025:CGHC:60075 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 133 of 2004 1 - Nand Lal Mourya (Died Through Lrs) As Per Honble Court Order Dated 26- 11-2025. 1.1 - Rajendra Prasad Mourya S/o Late Nandlal Mourya Aged About 62 Years R/o Darbari Toli Near Temple Of Shankar Ji, Jashpur, District Jashpur C.G.(Son Of Deceased) 1.2 - Smt Nirmala Mourya W/o Ambika Mourya Aged About 60 Years Address Chhote AtarKacchaa, T.V. Tower Road, Raigarh, District Raigarh C.G. (Daughter Of Deceased) 1.3 - Rajkumar Mourya S/o Late Nandlal Mourya Aged About 47 Years Address Chhote AtarKacchaa, T.V. Tower Road, Raigarh, District Raigarh C.G. (Son Of Deceased) 1.4 - Amit Kumar Mourya S/o Late Nandlal Mourya Aged About 35 Years Address Chhote AtarKacchaa, T.V. Tower Road, Raigarh, District Raigarh C.G. (Son Of Deceased) 2 - Bechu Ram Mourya S/o Shri Munshi Ram Mourya, R/o Chhote Antarmura, Raigarh (Chhattisgarh) 3 - (Deleted) Heeranand (Died) Through Lrs. As Per Honble Court Order Dated 28-07-2023. 3.1 - (A) Smt. Nanki Devi Rora W/o Late Heeranand Rora Aged About 72 Years R/o Ward No. 24 Kacchi Kholi, Sindhi Colony, Beladula, Raigarh (C.G.) 3.2 - (B) Smt. Bharti Kukreja D/o Late Heeranand Rora Aged About 52 Years W/o Prakash Chand Kukreja, R/o Khariyar Road, Distt. Nuapada (Odisha) 3.3 - (C) Smt. Sunita Nagwani D/o Late Heeranand Rora Aged About 50 Years W/o Dayal Das Nagwani, R/o Ambikapur, Distt. Surguja (C.G.) Digitally signed by NADIM MOHLE 2 3.4 - (D) Smt. Karuna Bajaj D/o Late Heeranand Rora Aged About 48 Years W/o Surya Prakash Bajaj, R/o B-7, Phase-1, Sector-2, Avanti Vihar, Raipur (C.G.) 3.5 - (E) Smt. Dipika Nathani D/o Late Heeranand Rora Aged About 46 Years W/o Surendra Kumar Nathani, R/o Pendra, Distt. Gourela-Pendra-Marwahi (C.G.) 3.6 - (F) Santosh Kumar Rora S/o Late Heeranand Rora Aged About 47 Years R/o Ward No. 24, Kacchi Kholi, Sindhi Colony, Beladula, Raigarh (C.G.) 3.7 - (G) Smt. Reena Panjwani D/o Late Heeranand Rora Aged About 45 Years W/o Deepak Panjwani, R/o House No. 230, Sector-2, Shakti Nagar, Huzur, H.E. Hospital, Bhopal (M.P.) 4 - Vindyanchal S/o Ramnath Prasad Sao, R/o Chhote Antarmura, Raigarh (Chhattisgarh). ... Appellants versus 1 - Jodhram Sahu S/o Punauram Sahu, R/o Chhote Antarmura, Teh. Distt. Raigarh (Chhattisgarh). 2 - State Of Chhattisgarh Through Collector, Raigarh (Chhattisgarh) ... Respondent(s) For Appellants : Mr. Prabhat Saxena, Advocate For Respondents No.1 For State : : Mr. Arvind Shrivastava, Advocate Mr. Pramod Shrivastava, Deputy Government Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment on Board 10/12/2025 1. Heard on I. A. No.3, an application under Order 41 Rule 27 of the CPC, for taking additional evidence on record. 3 2. Mr. Prabhat Saxena, learned counsel appearing for the plaintiffs/appellants, would submit that an application under Order 41 Rule 27 of the CPC has been moved for taking additional evidence on record. He would further submit that the demarcation report conducted by a team of Revenue Inspector and Patwari dated 28.09.2019 has been placed on record to demonstrate that the suit property i.e. 60 sq. ft., has been encroached over by defendant No. 1. He would contend that in the said report, it is categorically stated by the revenue authorities that defendant No. 1 has encroached over 60 sq. ft. of land out of Survey No. 23/1; thus, he would pray that the application (I.A. No.3) may be allowed. 3. On the other hand, Mr. Arvind Shrivastava, learned counsel appearing for respondent No.1, would oppose and submit that those documents were neither placed before the learned Trial Court nor before the learned first appellate Court; therefore, at the second appellate stage, such documents cannot be considered. He would contend that at the time of adjudication of the civil suit or appeal, those documents were not in existence. He would also submit that, as per Order 41 Rule 27 of the CPC, this application deserves to be rejected. 4. I have heard learned counsel for the parties and perused the application. 4 5. Order 41 Rule 27 of the CPC makes it clear that the parties may produce additional evidence only if the court from whose decree appeal is preferred has refused to admit evidence, or if the party seeking to produce additional evidence could not produce it despite the exercise of due diligence, or the Court requires the document to pronounce judgment. 6. In the instant case, the demarcation report dated 28.09.2019 was not in existence at the stage of Trial or first appeal; therefore, it cannot be held that the Court refused to admit evidence. Further, it is not the case that the plaintiffs failed to produce a document after due diligence before the first appellate Court because the demarcation report dated 28.09.2019 was not in existence when the judgment and decree were passed by the learned first appellate Court. Further, there is no direction from this Court to place on record certain documents; thus, the application (I.A. No.3) is liable to be and is hereby rejected. 7. The plaintiffs have preferred this second appeal under Section 100 of the Civil Procedure Code assailing the validity and propriety of the judgment and decree passed by the learned IV th Additional District Judge, FTC, Raigarh, in Civil Appeal No. 24-A/2002 dated 30.12.2003, whereby the appeal preferred by the plaintiffs was dismissed and the judgment and decree passed by the Trial court on 25.01.1999 was affirmed. 5 8. This appeal was admitted for hearing on the following substantial questions of law:- The substantial question of law framed on 11.09.2019 is reproduced as under: – “Whether both the Courts below are justified in dismissing the suit of the appellants/plaintiffs by disbelieving the demarcation report Ex.P-5 on a ground which is perverse and contrary to the record?” The substantial question of law framed on 04.07.2022 is reproduced as under: – “Whether the learned Courts below have justified in holding that the suit of the plaintiffs is barred by limitation?” 9. The plaintiffs have filed the suit claiming therein the reliefs of declaration of title, possession and mesne profits, inter alia, on the ground that Survey No. 23/1 admeasuring 0.571 hectares of land situated at Patwari Halka No. 13, Mohalla Chhote Antarmura, Raigarh was purchased through a registered sale deed dated 14.08.1990 from one Smt. Joginder Kaur vide Ex.P/1. It is pleaded that defendant No. 1, without the authority of law, encroached over 60 sq. ft. of land and raised the construction of a Kachha house. The plaintiffs pleaded that the cause of action arose in the year 1999 in Raigarh. The plaintiffs claimed mesne profits at the rate of 4 per day from defendant No. 1. ₹ 6 10.Defendant No. 1 filed a written statement and denied the plaint averments. He pleaded that he was in possession of 60 sq. ft. of land prior to the date of purchase of the suit property by the plaintiffs. It is stated that he is in continuous possession of the property for the last 14–15 years, and he has already constructed a house. Defendant No. 1 further stated that the plaintiffs are not entitled to any relief. 11. The learned Trial Court framed issues, and the parties led evidence. The plaintiffs exhibited a copy of the sale deed dated 14.08.1990 as Exhibit P-1. Revenue records wherein the names of the plaintiffs are recorded against Survey No. 23/1 are exhibited as Exhibits P-2 and P-3. The map prepared by Patwari, Chedi Lal Dewangan (PW-2), during the course of the demarcation is Exhibit P-4. Exhibit P-5 is a demarcation report; Exhibit P-6 is a map. 12.The plaintiffs examined Heeranand Roura (PW-1), Chedi Lal Dewangan, Patwari (PW-2), and Musaddi Lal Sharma (PW-3). Defendant No. 1 exhibited his Bank Advice Form deposited with the Madhya Pradesh Electricity Board on 06.05.1989 and other receipts issued by the Municipal Council, voter ID, ration card, electricity bills, and domicile certificate. Defendant No. 1 Jodhram Sahu examined himself as DW-1, Gunpat as DW-2, Mahant Lal Chouhan as DW-3, and Thakur Ram Mahant as DW-4. 7 13.The learned Trial court, after appreciation of oral and documentary evidence, dismissed the suit filed by the plaintiffs, holding it barred by limitation. The learned Trial court further held that the plaintiffs could not prove their right over the suit property, i.e., 60 sq. ft. of land. The stand of adverse possession taken by defendant No. 1 was also decided in negative. The plaintiffs preferred an appeal, and it was also negatived vide judgment and decree dated 30.12.2003. 14.Mr. Prabhat Saxena, learned counsel appearing for the plaintiffs, would argue that plaintiff No. 1 purchased Survey No. 23/1, admeasuring 0.571 acres of land from one Smt. Joginder Kaur, through a registered sale deed dated 14.08.1990. He contended that in the year 1992, an application was moved by the plaintiffs for the demarcation of the property. He would further submit that Survey No. 23/1 was demarcated by the Patwari pursuant to the order passed by the Tahsildar in Revenue Case No. 17/A/12/91-92, wherein it was found that 294 sq. ft. area has been encroached by one Vijay Kumar Sahu; 1287 sq. ft. land has been encroached by Bhim; and 60 sq. ft. land has been encroached by Jodhram Sahu/defendant No. 1. The Patwari recorded a finding that Vijay Kumar Sahu has constructed a toilet; Bhim has constructed a toilet; Vijay Kumar Sahu has constructed a kachha house. He would also submit that the demarcation was conducted by Patwari, PW-2, strictly in accordance with the law, but the courts below disbelieved it. He would contend that once the Patwari in demarcation 8 affirmed encroachment, the learned Trial Court should have decreed the suit. 15.With regard to the limitation, Mr. Saxena would submit that plaintiff No. 1 purchased the suit property on 14.08.1990 and Survey No. 23/1 was demarcated by the Patwari pursuant to the order passed by the Tahsildar on 05.04.1992, whereas the suit was filed on 07.05.1993; thus, it was well within limitation. He would further contend that the plaintiffs have sought the relief of possession. The limitation to claim possession according to Article 65 of the Limitation Act is 12 years. He would also contend that the plaintiffs are claiming a declaration of title over the suit property. The period of limitation according to Article 58 of the Limitation Act, 1963, is three years. He would argue that the suit was filed for compensation; therefore, the suit was within limitation from the date of encroachment. The findings recorded by the learned Courts below in this regard are perverse. He would pray to set aside the judgment and decree passed by the Courts below. 16.Mr. Arvind Shrivastava, learned counsel appearing for defendant No. 1, would oppose the submissions made by counsel for the appellants/plaintiffs and submit that defendant No. 1 was in possession of the suit property of 60 sq. ft. area out of Survey No. 23/1 prior to 14.08.1990. He contended that plaintiff No. 1 himself has admitted the fact that defendant No. 1 was in possession of 60 sq. ft. of land 14 to 15 9 years before the date of purchase. He would further contend that defendant No. 1 perfected his right over the property by law of adverse possession. He would also submit that the period of limitation to file a suit for declaration of title is three years, and relief of possession was consequential relief; therefore, the Courts below rightly recorded a finding that the suit filed by the plaintiffs was barred by limitation. Mr. Shrivastava would contend that the learned courts below have rightly disbelieved Exhibit P-5 demarcation report, and in para seven of the judgment held that the demarcation report was not signed by defendant No. 1 as he was not present. Even notice was not issued to defendant No. 1, and this fact has been admitted by PW-2 Chedi Lal Dewangan, Patwari. He further stated that in Exhibit P-4, Patwari has not specified the place from where he started demarcation. It is also admitted that the area of encroachment is described in a triangular shape, but without measurement. On this premise, the learned courts below disbelieved the demarcation report, Exhibit P-5. He would contend that there is a concurrent finding recorded by the two courts below. 17.Mr. Pramod Shrivastava, Deputy Government Advocate appearing for the State, would support the judgment passed by the Courts below. 18.I have heard learned counsel for the parties and perused the record. 10 19.The C.G. Land Revenue Code, 1959, Section 124, Chapter X, deals with boundaries and boundary marks. For the sake of convenience, Section 124 is reproduced herein below:- “124.Construction of boundary marks of villages and survey numbers or plot numbers. (1)Boundaries of all villages shall be fixed and demarcated by permanent boundary marks. (2)The State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall also be fixed and demarcated by boundary marks. (3)Such boundary marks shall, subject to the provisions hereinafter contained, be of such specification and shall be constructed and maintained in such manner as may be prescribed. (4)Where the rules prescribed boundary marks of a specification different from that prevailing in any village, the new specification shall not be enforced in such village except upon application to a Tahsildar made by not less than half of the number of holders of land in the village. When such application is made, the Tahsildar shall have new boundary marks constructed throughout the village and shall distribute the cost thereof proportionately among the holders of land in the village in accordance with rules made under this Code. The share of each holder shall be recoverable as an arrear of land revenue. (5)Every holder of land shall be responsible for the maintenance and repair of the permanent boundary and survey marks erected thereon.” 20.Rules have also been framed regarding boundaries and boundary mark & survey marks. The relevant rule for the purpose of this lis so far as applicable are reproduced hereunder:- “2.The boundaries of all villages and boundaries of survey numbers or plot numbers in villages notified under sub- section (2) of Section 124 shall be demarcated by – 11 (a) an unploughed strip 1.50 metre in width;or (b) a dhura 0.50 metre high, 1.50 metre wide at the base and 1.00 metre at the top; or (c) a strong fence or wall, or (d) boundary stones. 3. Near each corner of a survey number or plot number shall be erected two mounds or teelas pointing along the field boundaries. The dimension of such teelas shall be – Particulars Metre Length 2.00 Breadth at base 0.50 Breadth at top 0.25 Height 1.00 To be distributed equally on both the sides of a field boundary. Provided that it shall not be necessary to erect such teelas if a wall is constructed right up to a corner of a field. 4. When the length of a boundary exceeds 250 meters or such shorter distance, not being less than 60 metres, as the State Government may by order fix in this behalf for any particular tract or villages, one intermediate stone or teela shall be erected on such boundary, unless the boundary is clearly defined by a hedge, fence or wall. 5. At each bend of more than 2.50 metres in the boundary of a survey number or plot number shall be erected a stone not less than 0.15 metre square and 0.75 metre in length, of which at least 0.60 metre shall be sunk in the ground. 6. When the corner of a survey number or plot number falls near a nalla where mounds should be liable to be washed away, stones of the dimensions specified in Rule 1 may be used instead of teelas to demarcate the boundary. In that case, one stone shall be fixed at the corner and another stone or a teela on each boundary line at a distance of 5.00 metres from the corner. 7. In villages where not less than half the number of holders of lands desire it, a system of single boundary marks may be introduced in place of those specified in 12 Rules 3 to 6. Such single boundary marks may be of the following descriptions :- 1. Stones not less than 1.00 metre long and 0.15 metre square embedded in rubble and mortar with not more than 0.30 metre above the ground level. 2. Masonry pillars of cement, mortar or burnt brick in cement mortar 0.30 metre square and 1.00 metre high, of which 0.60 metre must be embedded in the ground with the foundations stepped down. 3. Of such other description as may be approved from time to time by the State Government. 8. xxx xxx xxx 9. xxx xxx xxx 10. After the 1st March, the Patel and patwari shall make a second inspection of all fields entered in the list to ascertain whether the defective boundary or survey marks have been repaired or not. The second inspection shall be completed by the 31st March, and the patwari shall thereon send to the Tahsildar the statement in Form A, signed by himself and the patel, giving the details of boundary marks or survey marks still defective or missing and an estimate of the cost of repairs or replacement. A separate report shall be sent by the patwari regarding each case of encroachment or ploughing of a boundary strip or dhura together with an estimate of the cost of repairs. 11.The Tahsildar shall then, after such enquiry as he may consider necessary, order the patel to have the boundary marks repaired or replaced by hired labour, and recover the cost together with penalty in accordance with sub-section (2) of Section 128. 12. Where boundary strip or dhura has been encroached upon and ploughed up, the Tahsildar shall issue a notice to the person responsible, requiring him by a certain date to erect on that portion of the boundary strip which has been encroached on or ploughed up, a ridge of earth (dhura) 0.50 metre high, 1.50 metres wide at the base and 1.25 metres wide at 13 the top or a strong fence or wall, and should he fail to do so, the Tahsildar shall order a dhura of the aforesaid dimensions to be constructed by hired labour and recover the cost together with penalty in accordance with sub-section (2) of Section 128. 13. 13. The construction and maintenance of boundary marks in all villages shall be regulated as follows:- (a) Where Government forest adjoins or is included in such village, half the boundary marks shall be constructed and maintained by Forest Department and the other half shall be constructed and maintained – (i) if the forest adjoins occupied land, by holders of such land; (ii) if the forest adjoins unoccupied land set apart for any of the purposes specified in sub-section (1) of Section 237, by the Revenue Department; (b) the boundary marks between survey numbers or plot numbers of unoccupied land set apart for any of the purposes specified in sub-section (1) of Section 237, shall be constructed and maintained by the Revenue Department; (c) a holder of land shall be responsible for the construction and maintenance of – (i) half the boundary marks on the boundaries between his land and other occupied land; (ii) all the boundary marks between his land and unoccupied land of any of the categories specified in sub-section (1) of Section 237, and village waste or unoccupied land available for disposal referred to in clause (b) of Section 233: Provided that between a village, in which the system of single boundary marks has been introduced under Rule 6 and one in which it has not, the holder of land in the former shall be responsible for the construction and maintenance of all such marks that fall on the common boundary. FORM A (See Rules 9 and 10) 14 Statement of defective or missing boundary and survey marks Village __________Tahsil __________District __________Year __________ Survey No. / Plot No. Name of holder and actual cultivator Stones (E) (N) (W) (S) Mounds (E) (N) (W) (S) Stones (E) (N) (W) (S) Survey Marks Mounds (E) (N) (W) (S) Boundary strips or dhuras (length in metres) EXPLANATION (i) Column 1 – Enter only survey numbers in which marks are out of repairs. (ii) Column 3 to 15 – Enter results of first inspection made between the 1st November and the 15th December (Rule 9). (iii) Columns 16 to 28 – Enter results of second inspection made between the 1st March and the 31st March (Rule 9). (iv) Details regarding the nature and location of survey marks shown in Columns 15 to 28 should be given in the remarks (Column 30). FORM B (See Rule 9) Notice requiring holders of land to repair or replace their boundary marks/survey marks From: The Patel of Village __________Tahsil __________ To: Whereas the boundary marks/survey marks of your field detailed below are defective or missing, you are hereby directed to put them into proper repair or replace them before the 1st day of March next:- Survey No. / Plot No. Details of defective or missing boundary marks / survey marks 15 21.I shall first deal with the first substantial question of law framed on 11.09.2019. The plaintiff purchased Survey No. 23/1, admeasuring 0.571 acres, on 14.08.1990 through a registered sale deed. He moved an application for demarcation, and it was conducted by Patwari PW-2 on 05.04.1992. In the demarcation report, it is stated that 60 sq. ft. of land has been encroached upon by defendant No. 1, and a Kaccha house has been constructed over it. The map is annexed vide Exhibit P-4. The area of encroachment is described as triangular, but there is no measurement of encroachment. Further, the demarcation report does not contain the signature of defendant No. 1. Chedi Lal Dewangan, Patwari, PW-2, in cross-examination, in para 5 has admitted that notices were not issued to the defendant and other persons who had encroached upon Survey No. 23/1. He further admitted that the area of encroachment is described as triangular, but the same is without measurement. This witness could not specify the place from where the demarcation was started. 22.As per the Rules regarding the demarcation of boundaries and construction of boundary marks, particularly Rule 3 states that an application under Rule 2 shall set forth the following particulars: (i) the name, father’s name of the applicant; (ii) the survey number, sub-division number or plot number of the land proposed to be measured and demarcated; (iii) the details showing adjoining survey numbers or sub-divisions/plot numbers; 16 (iv) the number and date of receipts showing payment of fee. 23.Perusal of the report would show that the Patwari did not give notice to the landowners of adjoining lands, and in absence of such mandatory notice, the demarcation was conducted. No notice was issued to defendant No. 1, who was an interested party against whom the suit was filed. PW-2 has admitted this fact. Patwari has not stated the starting point of the demarcation, and the same has not been specified in the demarcation report; therefore, the learned courts below rightly disbelieved the demarcation report and recorded a finding that the plaintiffs failed to prove that they are the owners of the suit property and that they are entitled to get possession. Accordingly, the substantial question of law is decided in negative against the plaintiffs. 24.The Hon’ble Supreme Court in the matter of Sopanrao v. Syed Mehmood, 2019 (7) SCC 76, held that since the suit was not filed only for a declaration but the plaintiff also sought possession of the suit land, and the period of limitation for instituting a suit for possession based on title would be twelve years. The relevant para- 9 is reproduced as under:- “9. It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We 17 have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants.” 25. Now, I shall deal with the second substantial question of law framed on 04.07.2022. The property was purchased by plaintiff No. 1 on 14.08.1990. The plaintiff failed to purchase the property after due demarcation, but later on, he came to know that there is an encroachment over some part of the property; therefore, he moved an application for demarcation. Survey No. 23/1 was demarcated by the Patwari on 05.04.1992, wherein encroachment was found over 60 sq. ft. 18 of land. The suit was filed by the plaintiff on 17.05.1993 seeking a declaration of title, possession, and mesne profits. The period of limitation to claim a declaration is three years from the date when the right to sue first accrued. The period of limitation for possession of immovable property is 12 years as per Article 65. The plaintiffs came to know that defendant No. 1 had encroached over 60 sq. ft. of land on 05.04.1992 when the suit property was demarcated by the Patwari; the suit was filed within the limitation for declaration of title as well as possession. The findings recorded by the Courts below regarding period of limitation appear to be erroneous. Accordingly, the substantial question of law No. 2 is decided in the affirmative in favour of the plaintiffs. 26. As a result, as the plaintiffs failed to prove the right over the suit property, i.e., 60 sq. ft. out of Survey No. 23/1, therefore, this appeal fails and is hereby dismissed. 27.No cost(s). 28.A decree be drawn accordingly. Sd/- Rakesh Mohan Pandey JUDGE Nadim