1 2025:CGHC:7418 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP(227) No. 146 of 2025 1. Sushil Sahu S/o Late Shri Firturam Sahu Aged About 45 Years R/o Village Kalmi Near Kotra Road Canal Tahsil And District - Raigarh (C.G.) (Judgment Debtor No. 1) 2. Shanti Devi Sahu W/o Late Shri Naresh Kumar Sahu Aged About 42 Years R/o Near Itwari Bazar Shahid Chowk Raigarh Tahsil And District - Raigarh (C.G.) Debtor No . 4 ) 3. Dular Singh Thakur S/o Mohan Singh Thakur Aged About 45 Years R/o Village Kalmi Near Kotra Road Railway Crossing Raigarh Tahsil And District - Raigarh (C.G.) (Debtor No. 6 ) ... Petitioners Versus 1. Dinesh Kumar Agrawal S/o Late Shri Mahaveer Prasad Agrawal Aged About 62 Years R/o In Front Of Main Hospital Raigarh Tahsil And District - Raigarh (C.G.) (Decree Holder) 2. Sunil Sahu S/o Late Shri Firturam Sahu Aged About 43 Years R/o Village Kalmi Near Kotra Road Canal Tahsil And District - Raigarh (C.G.) ( Judgment Debtor No. 2) 3. Krishna Sahu S/o Late Shri Firturam Sahu Aged About 35 Years R/o Village Kalmi Near Kotra Road Canal Tahsil And District - Raigarh (C.G.) (Judgment Debtor No. 3 ) 4. Shyamlal Sahu @ Bunty S/o Gajalal Sahu Aged About 35 Years R/o Indira Nagar Raigarh Tahsil And District - Raigarh (C.G.) (Judgment Debtor No. 5) ... Respondents For Petitioners : Mr. Sourabh Sahu and Mr. Ankit Singh, Advocates For Respondents : None Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 12/02/2025 Heard on admission. 1. The petitioners have filed this petition seeking the following relief(s):- Digitally signed by RAMESH KUMAR VATTI 2 “10.i That this Hon'ble Court may kindly be pleased to quash the order dated 09/12/2024 passed in Civil Execution No. 4/2003, passed by learned First Civil Judge Class II, Raigarh (C.G.) 10.ii That this Hon'ble Court may kindly be pleased to direct the Court of learned First Civil Judge Class II, Raigarh (C.G.) to appoint Commissioner to conduct local investigation. 10.iii Any other relief, which this Hon'ble Court deems fit and proper, may also kindly be granted to the petitioners, in the interest of justice. 10.iv Cost of the petition may also be granted to the petitioners.” 2. Mr. Sourabh Sahu, learned counsel appearing for the petitioners would submit that the plaintiff/respondent No. 1 herein filed a suit for declaration of title and permanent injunction before the Court of Second Civil Judge Class-I, Raigarh pertaining to the land bearing Survey No. 390/1 admeasuring 0.231 hectare situated at Village Kalmi, Patwari Circle No. 14, Tehsil and District Raigarh. It was averred that the petitioners have encroached over the subject land. He would further submit that the civil suit was dismissed by the learned trial Court vide judgment and decree dated 17.07.2018. He would contend that the first appeal preferred by respondent No. 1 was decreed vide judgment and decree dated 25.02.2019, wherein the petitioners were directed to deliver the possession of 6985 sq.ft. land to respondent No.1 and the decree of permanent injunction was also passed. He would also submit that respondent No.1 moved an application for execution under Order 21 Order 32(5) of CPC. He would further contend that an application under Order 26 Rule 9 of CPC read with 3 Section 151 of CPC was moved for demarcation of the subject land inter alia on the ground that part of the suit land was acquired by the State for the construction of a canal and an award was also passed in the year 2009. He would also submit that the remaining 0.098 hectare land got divided into 02 parts on account of the construction of a canal. He would argue that without demarcation, the decreed land cannot be identified. He would further argue that the learned Executing Court ought to have allowed the application moved by the petitioners under Order 26 Rule 9 of CPC for elucidating the identity of the land. 3. I have heard learned counsel for the petitioners. 4. In the application moved under 26 Rule 9 of CPC, in para-3, the petitioners have stated that they are not encroachers and for the identification of land, the demarcation is necessary. 5. The learned first appellate Court in Civil Appeal No. 68/2018 vide judgment and decree dated 25.02.2019 has categorically held that the petitioners have encroached over 6985 sq.ft. land. Further, the petitioners have been directed to hand over the possession of the subject land to the plaintiff/respondent No.1, therefore, the petitioners/judgment debtors cannot be permitted to take a plea that they are not encroachers. The petitioners have not challenged the judgment and decree passed by the learned District Judge, Raigarh in Civil Appeal No. 68/2018 and it has attained finality. The petitioners also failed to demonstrate that any other survey number entered in their name is available adjacent to the subject property. The petitioners have disputed the finding recorded by the learned first appellate Court in Civil Appeal, which is not permissible at the execution stage. 4 6. Taking into consideration the above-discussed facts, I do not find any good ground to interfere with the order passed by the learned Executing Court. 7. Consequently, the petition fails and is hereby dismissed at the admission stage. No Costs. Sd/- (Rakesh Mohan Pandey) Judge vatti