1 2025:CGHC:13041 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 75 of 2018 1 - Pyarelal S/o Guahram Sahu Aged About 38 Years R/o Village Bhoyna, Police Station And Tahsil- Dhamtari, District Dhamtari, Chhattisgarh..........Plaintiff, ... Appellant versus 1 - Smt. Kamla Bai W/o Jahan Sahu Aged About 60 Years R/o Village Bhoyna, Police Station And Tahsil Dhamtari, District Dhamtari, Chhattisgarh..........Defendants. 2 - Smt. Bhagwantin W/o Ramji Sahu Aged About 44 Years R/o Village Bhoyna, Police Station And Tahsil Dhamtari, District Dhamtari, Chhattisgarh., 3 - State Of Chhattisgarh Through The Collector, Dhamtari, District Dhamtari, Chhattisgarh. ... Respondent(s) For Appellant : Shri Sunil Sahu, Advocate. For Respondents 1 & 2 : Shri Amit Kumar Sahu, Advocate. For Respondent No.3 : Shri SK Puriya, Panel Lawyer. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 19/03/2025 KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.03.19 17:13:38 +0530 2 1. Shri Amit Kumar Sahu, learned counsel would accept notice on behalf of respondents No.1 & 2. 2. With the consent of learned counsel for the parties, the matter is heard finally. 3. This Appeal is admitted on the following substantial question of law:- “Whether both the Courts below were justified in dismissing the suit only on the ground that the demarcation (Ex.-P/10) was not properly carried out by the concerned Revenue Officer?” 4. Facts of the case are that the appellant has filed a civil suit for declaration of title, permanent injunction and possession of the suit land bearing Khasra No.216/1, ad measuring 0.02 hectares and Khasra No.216/2, ad measuring 0.03 hectares, by making an averment, inter alia, that defendants No.1 & 2 have encroached upon some part of the land which is marked as A,B,C & D in the map annexed with the plaint. The plaintiff got the demarcation done vide report Ex.-P/10 which also establishes the encroachment being raised by the defendants in the suit property. Therefore, the instant suit was filed. The defendants denied the averments made in the plaint. It was pleaded that they are in possession of the land for more than 20-25 years along with one Vyas Bai, who was not impleaded as party and that they are in possession of Khasra No.215, which is not the land of the plaintiff. 5. The trial Court has framed as many as 4 issues and reached to the conclusion that the demarcation report has not been proved properly, as no notice has been served on the defendants and other adjoining land owners and only on such basis, the suit was dismissed, which was affirmed by the first appellate Court. 3 6. Learned counsel for the appellant would submit that when there is serious dispute as to the boundaries of the land and the fact whether the defendants have encroached upon some part of the land of the suit property or not, though demarcation report (Ex.-P/10) was issued in their favour and if the Courts below have found that the demarcation was not carried out in accordance with law, then the proper course left with the trial Court was to direct for fresh demarcation instead of dismissing the entire suit. Therefore, the matter may be remitted back to the trial Court on such score. 7. On the other hand, learned counsel for respondents No.1 & 2 would not oppose the said prayer. 8. I have heard learned counsel for the parties at length and perused the records with utmost circumspection. 9. In the matter of Shreepat v. Rajendra Prasad & Others { JT 2000 (7) SC 379}, the following was materially observed at para-4 which reads as under:- "4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below..…" 10. Admittedly, in the present case, the plaintiff has filed a civil suit on the basis of demarcation report (Ex.-P/10). The argument raised by learned counsel for the appellant that when both the Courts below have found 4 that proper demarcation has not been carried out by the concerned Revenue Officer, then in such circumstances proper course left with the Courts below was to order for fresh demarcation, appears to be acceptable. 11. For the forgoing, the Appeal is allowed and the impugned judgment and decree passed by both the Courts below are set aside. The Civil Suit No.149-A/2013 is restored to its original number and the concerned trial Court is directed to get the demarcation done afresh in accordance with law and decide the suit afresh on its own merit. 12. The substantial question of law is answered accordingly. 13. Parties are directed to remain present before the trial Court i.e. the first Civil Judge, Class-II, Dhamtari on 22 nd April, 2025 . 14. A decree be drawn accordingly. 15. No order as to costs. Sd/- (Deepak Kumar Tiwari) Judge Barve