1 2025:CGHC:61301 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 297 of 2015 1 - Smt. Radha Bai (Died) Through His Legal Heirs As Per The Hon'ble Court Order Dated 09-03-2021. 1.1 - (I) Pradeep Kumar Dubey S/o Late Neelkanth Dubey Aged About 61 Years R/o Village Sarsiwan , Tehsil Bilaigarh, District Balod Bazaar Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh 1.2 - (Ii) Rakesh Kumar Dubey S/o Late Neelkanth Dubey Aged About 58 Years R/o Village Sarsiwan , Tehsil Bilaigarh, District Balod Bazaar Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh 1.3 - (Iii) Dinesh Kumar Dubey S/o Late Neelkanth Dubey Aged About 58 Years R/o Village Sarsiwan , Tehsil Bilaigarh, District Balod Bazaar Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh 2 - Pradeep S/o Late Neelkanth Dubey Aged About 54 Years R/o Village Sarsiwan, Tahsil Bilaigarh, District- Baloda Bazar-Bhatapara, Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 3 - Rakesh S/o Late Neelkanth Dubey Aged About 52 Years R/o Village Sarsiwan, Tahsil Bilaigarh, District- Baloda Bazar-Bhatapara, Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 4 - Dinesh S/o Late Neelkanth Dubey Aged About 49 Years R/o Village Sarsiwan, Tahsil Bilaigarh, District- Baloda Bazar-Bhatapara, Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh ... appellant (s) SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.01.03 15:23:50 +0530 2 versus 1 - Dr. B. Chourasia S/o Ganga Prasad Chourasia Retired Assistant Surgeon, Civil Dispensary, Sarsiwan, Tahsil Bilaigarh, District Baloda Bazar, Bhatapara, Chhattisgarh, Chhattisgarh 2 - Chief Medical And Health Officer, Raipur, District-Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 3 - State Of Chhattisgarh Through The Collector, Baloda Bazaar, District-Baloda Bazaar-Bhatapara, Chhattisgarh, Taluka : Bhatapara, District : Balodabazar- Bhathapara, Chhattisgarh ... Respondent(s) For appellant (s) : Dr. N. K. Shukla, Sr. Advocate along with Mr. Dinesh Bole & Ms. Riddhi Gupta, Advocate For Respondent/ State : Mr. Arvind Dubey, Govt. Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 16.12.2025 1. The present second appeal has been filed by the plaintiffs under Section 100 of Code of Civil Procedure, 1908 against the impugned judgment and decree dated 30.03.2015 passed by learned 1st Additional District Judge, Balodabazar, in Civil Appeal No. 13A/2013, whereby the first appeal filed by the plaintiff has been dismissed and the judgmnet and decree dated 22.02.2013 passed by Civil Judge,Class-II, Bhatgaon, Dist- Balodabazar-Bhatapara in Civil Suit No49 A/2010 has been affirmed. 2. The plaintiff has filed a civil suit for declaration of title and permanent injunction and vacant possession over the suit land, Khasra No. 1051/10, Area- 0.121 Hec. situated at Village- Sarsiva, Tahsil- 3 Bilaigarh, Dist- Balodabazar (the then Raipur district) with the pleading that the suit property was earlier owned by his father who was the Malgujar of Village- Sarsiva. On or about 1935-36 his father has got developed the said land by digging a well and constructed Dharmshala and residential quarter for public and charitable purpose. In the year 1941-42, they handed over the said premises to the State Government to open a hospital in the public interest and since then a government hospital is running over the said premises. It is also the pleading of the plaintiff that the defendants were licencee of the plaintiff and there was a condition that as and when, the father of the plaintiff claimed possession of the suit property, the defendants will hand over the vacant possession of the same. In the year 1950-51, the father of the plaintiff would become Sadhu and left the village, however, undisputedly the hospital was running till date. The plaintiff is taking care of the building and well, and got it repaired time to time. On 26.08.1991, the nephew of the plaintiff had made an application to the Tahsildar, Bilaigarh and an enquiry was conducted by him with respect to the construction over the suit land and a report has been submitted on 30.08.1991 before the Sub-Divisional Officer (Revenue). In the said report, it has been found that construction over the suit land was raised by ex-malgujar, who is the father of the plaintiff and then the defendant No. 1 has claimed the house rent allowance from the State government. It is claim of the plaintiff that after death of his father who was the ex-malgujar, he is title holder of the suit property and being the owner of the property, he is taking care of the suit property. He served a legal notice under Section 80 of CPC to the State government on 01.07.2005 and terminated the license from 01.09.2005 and claimed 4 vacant possession of the suit premises and in pursuance thereof he obtained vacant possession of the suit premises also. He apprehended that the defendant No. 2 and 3 are the State authorities and may interfere with the possession of the plaintiff over the suit land with the help of Police persons and therefore, he filed the suit for declaration of title and permanent injunction. 3. The defendant No. 2 contested the claim of the plaintiff and filed his written statement, denied the plaint averment and pleaded that as per the revenue record, the land of Khasra No. 1051/10, Area- 0.121 Hec. is government abadi land and reserved for public purpose and the hospital building of Primary Health Centre, Sarsiva is situated over the said suit land and the government alone is the owner of the said property. The government property and hospital building are being managed by the government employees. The hospital building is not situated over the land of Khasra No. 1051/6 but it is situated at the government abadi land of Khasra No. 1051/10 and the government hospital is being run by the State government. He denied the termination of any license from 01.09.2005. The defendant No. 1 is retired from service on 30.06.2005 and thereafter, he was not authorized to act on behalf of State government from 02.09.2005. The government hospital over the abadi land of Khasra No.1051/10 is running more than 60-70 years and therefore, the plaintiff has no right of title over the suit property and his suit is barred by limitation also. The suit has been filed with ulterior motive and therefore, the same is liable to be dismissed. 4. Based on the pleadings of the parties, the learned trial Court framed 5 issued, particularly, the issue as to whether the land of Khasra No. 1051/10, Area- 0.121 Hec. is government land or not and whether the plaintiff is title holder of the suit property and entitled for a decree for permanent injunction or not. 5. In support of his claim, the plaintiff Neelkanth has examined himself as (PW/1), Harish Shukla as PW/2, Dr. B. Chourasiya as PW/3, Sarad Dubey as PW/4, Guha as PW/5, Ishwari Prasad Dubey as PW/6, Mahaveer Kedia as PW/7 and has relied upon the document (Ex-P/1) which is the memo issued by Tahsildar to the SDO, Balodabazar, (Ex- P/2) which is the copying application, (Ex-P/3) is the notice dated 07.06.2005, (Ex-P/4, P/6 and P/6) which are the postal receipts and (Ex-P/7, P/8 and P/9) which are the acknowledgment and (Ex-P/10) which is the reply of notice of Section 80 of CPC. Since, the defendants have proceeded ex-parte after filing of written statement of defendant No. 2 from 17.09.2008 and therefore, no cross-examination of the witnesses are being done by the defendants. 6. After appreciation of oral as well as documentary evidence led by the plaintiff, the learned trial Court had passed the judgment and decree on 03.09.2010 and dismissed the suit of the plaintiff by holding that the suit land of Khasra No. 1051/10 is the government abadi land and it was reserved for Panchayat building and hospital building and the plaintiff has no right of title over the suit property. It has also been held by learned trial Court that, the suit land was in possession of the father of the plaintiff who was the ex-malgujar and he constructed a Dharmshala and building and also dug a well on or about 1941-42 and handed it over to the Janpad Panchayat, Balodabazar for hospital 6 purposes. It has also been held that there is no document on record produced by the plaintiff that the ex-malgujar Teekam Prasad was title and possession holder of the constructed house, well and the suit land or the said property was given in license to the defendant, and admittedly the suit property is in possession of the State government where the hospital is running and thus, the plaintiff has failed to prove that his father was having title and possession over the suit property and therefore, dismissed the suit. 7. The judgment and decree passed by learned trial Court was challenged by the plaintiff in F.A. No. 56-A/2011 before the learned 2nd Additional District Judge, Balodabazar. The said first appeal was allowed by the first appellate Court and the matter was remitted back to the learned trial court vide its judgment dated 17.08.2012 for deciding the case afresh after giving opportunity of hearing to the parties, particularly, the State government, as from the evidence produced by the plaintiff, it could not be established that who is the actual owner of the suit property and the said construction of hospital building, dharamshala and well, which was constructed before the abolition of proprietary rights. At that time, the revenue records Khasrapanshala and Kistbandi were not in existence and at that time the land was in possession of Malgujar and not of abadi land. After receiving the case back from the first appellate Court, the learned trial Court again issued the notices to the State government, however, no one appears on behalf of the State government to contest the claim of the plaintiff and then the learned trial Court again passed the judgment and decree on 22.02.2013 and again dismissed the suit of the plaintiff by holding that the plaintiff has failed to prove his title and possession over the suit 7 property. 8. The plaintiff again filed first appeal before the learned first appellate Court which has been again decided on 30.03.2015 and the appeal filed by the plaintiff has been dismissed affirming the judgment and decree passed by learned trial Court and by holding that as per Section 57 of Chhattisgarh Land Revenue Code, all the reserved lands are belongs to State government and the suit property is also the property belongs to State government and the plaintiff has failed to prove his right, title or possession over the suit property, hence this Second Appeal. 9. Learned counsel appearing for the appellant would submit that admittedly, the building was constructed by the father of the plaintiff over the suit land of Khasra No. 1051/10 and giving on license to the State government to run the hospital building and residential quarters. The pleadings and evidence of the plaintiff remain unrebutted as the defendants have proceeded ex-parte throughout the proceeding. The license was terminated from 01.09.2005 by service of notice upon the defendants and thereafter, the possession of the defendants would become illegal and they are encroachers over the suit property of the plaintiff. He would also submit that the unrebutted evidence of the plaintiff have been erroneously disbelieved by the learned trial Court as well as learned first appellate Court. He would further submit that the learned first appellate Court has wrongly interpreted the provisions of Section 57 of Chhattisgarh Land Revenue Code, 1959, to hold that all the lands belong to the State government and the plaintiff has not raised any objection before the competent authority after declaring the 8 suit property as the government property. Therefore, there exist substantial question of law for its determination with respect to the ownership of the property and status of the land before coming into force of Chhattisgarh Land Revenue Code, 1959. 10. I have heard learned counsel for the appellants and perused the record of the trial Court. 11. The plaintiff filed the suit with the pleading that the suit land Khasra No. 1051/10, Area- 0.121 Hec. is the abadi land which was owned by his father Teekam Prasad Dubey, who was the ex-malgujar of Village- Sarsiva. On or about 1935-36, his father had constructed a dharmashala and residential quarter and dug a well for public purposes and handed over to the government in the year 1941-42 to run the government hospital for the general public. It is also the case of the plaintiff that he terminated the license by the notice dated 01.07.2005 and obtained the vacant possession of the building and therefore, he filed the suit for declaration of title and permanent injunction. It is the case of plaintiff himself that the suit land Khasra No. 1051/10 is the abadi land, the plaintiff, in support of his case, has not filed any documents to show that the land over the said construction is situated, is owned by himself or it is not the abadi land belongs to State government. The abadi land is defined under Section 243 of the Chhattisgarh Land Revenue Code, 1959, and according to which where the area reserved for abadi, the Collector may reserve such further area from the unoccupied land in the village as he may think fit and if the unoccupied land for the purpose of abadi is not available, the State government may acquire any land for extension of abadi. The 9 plaintiff himself has stated that on or about 1935-36, his father had constructed the building and dug a well and handed over to the State government to run the hospital. Though, he stated that it was constructed over the abadi land and the abadi land has been defined in the Chhattisgarh Land Revenue Code which came into force from 02.10.1959 and prior to that, at the time when the alleged construction was made and handed over to the State government, the father of the plaintiff was malgujar of Village- Sarsiva and it was Malgujari land. By the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, the proprietary rights was abolished and the proprietary rights are vested with the State government. As per Section 5 of the Act of 1950, certain proprieties were continue in possession of proprietor or any other person were held to be continued to belong to be or held by such proprietor or other persons in whose possession, the property was at the time of the abolition of proprietary rights. Admittedly, the property was vested with the State government at the time of abolition of proprietary rights and even otherwise the State government was in possession of the suit property when the proprietary rights were abolished and the State government were running the hospital over the suit premises. When the Chhattisgarh Land Revenue Code,1959 came into existence on 02.10.1959, the provisions of Section 57 was made in which it has been declared that all the lands belong to State government and the property of State Government and the provisions of revenue records like Khasrapansala, B1 etc. have been provided including the definition of abadi land. There is also provision that if any discrepancies in the revenue records, the concerned party shall make an application within stipulated time before 10 the competent authority. Till, 2005, the plaintiff did nothing and the property remain in possession of State government and even till today. There is no evidence that the plaintiff is obtained possession of the suit property. 12. From the evidence of the plaintiff’s witnesses, the construction of the hospital building is over abadi land of Khasra No. 1051/10. Even, though, the evidence of the plaintiff’s witnesses are unrebutted, it has been established from the evidence of plaintiff that the subject construction was situated over the abadi land of Khasra No. 1051/10 and hospital building is running since the life time of his father. The plaintiff has not filed any document with respect to the ownership or title of the suit property with him to substantiate his claim, even there is no document with respect to obtain the possession of the suit property by the plaintiff except the self serve statement that he obtained the possession of the suit property. When the plaintiff is claiming title over the suit property and permanent injunction, he has to prove by leading cogent evidence that he obtained possession over the suit property but he failed to do so. When the plaintiff is not in possession of the suit property, he was required to file the suit for possession also but he filed the suit for only declaration of title and permanent injunction, therefore, in view of the judgment passed by Hon’ble Supreme Court in the case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors, reported in 2008 (4) SCC 594, the suit of the plaintiff for declaration of title and permanent injunction without claiming possession was not maintainable. 13. From perusal of the pleadings of the parties and evidence produced by 11 the plaintiff, this Court does not find any illegality or perversity in the judgment passed by learned trial Court as well as first appellate Court by which they dismissed the suit of the plaintiff and I do not find any question of law much less substantial question of law involved in the present appeal for its determination. 14. Accordingly, the second appeal being devoid of merits liable to be and is hereby dismissed without noting to the other side. 15. Paries shall bear their own cost. Sd/- (Ravindra Kumar Agrawal) Judge sagrika