Chattisgarh High Court
Ghanshyam Prasad Dewangan vs Naresh on 19 March, 2026
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 323 of 2019
Judgment Reserved on 12/3/2026
Judgment Delivered on_19 /3/2026
Ghanshyam Prasad Dewangan S/o Dukaluram Dewangan, Aged About
57 Years R/o Balauda, Tahsil Balauda, District- Janjgir-Champa,
Chhattisgarh.................(Plaintiffs)
... Appellant
versus
1 - Naresh S/o Kishan Lal Dewangan, Aged About 48 Years
2 - Chandrabhan S/o Sukalu Dewangan, Aged About 58 Years
3 - Krishna Murari S/o Arjunlal Dewangan, Aged About 57 Years
4 - Bodhiram, S/o Mathura Dewangan, Aged About 66 Years
5 - Lagan S/o Narayan Dewangan, Aged About 48 Years
6 - Manharan S/o Jaitram Dewangan, Aged About 58 Years
SHYNA
AJAY
Digitally signed by
SHYNA AJAY
DN: cn=SHYNA AJAY,
o=PERSONAL,
st=Chhattisgarh, c=IN
2
All are R/o Village Balauda, Tahsil Balauda, District- Janjgir-Champa,
Chhattisgarh
7 - President Nagar Panchayat Balauda, Smt. Jamuna Devi Ratre,
Tahsil Balouda, District- Janjgir-Champa, Chhattisgarh
8 - Chief Executive Officer, Nagar Panchayat Balauda, Pravesh Chand
Kashyap, Tahsil Balauda, District- Janjgir-Champa, Chhattisgarh
9 - State Of Chhattisgarh Through Collector, Janjgir, District- Janjgir-
Champa, Chhattisgarh...........(Defendants)
... Respondent(s)
For Appellant : Ms. Ankita Goswami, Advocate on behalf of
Mr. P.K. Patel, Advocate
For Respondent(s) : Mr. Dharmesh Shrivastava, Dy. AG
No one appears on behalf of the other
defendants despite service of notice.
DB: Hon'ble Mr. Justice Sanjay S. Agrawal &
Hon'ble Mr. Justice Amitendra Kishore Prasad
C A V JUDGMENT
Amitendra Kishore Prasad, J.
1. This appeal under Section 96 of the CPC is filed by the plaintiff aggrieved by the judgment and decree dated 28.6.2019 passed by the Third Additional District Judge, District Janjgir-Champa (CG) in Civil Suit No.29-A/2017, whereby the plaintiff's suit for permanent injunction was dismissed by the trial Court. 3
2. Brief facts of the case, as projected by the appellant/plaintiff, are that the appellant/plaintiff instituted a civil suit for permanent injunction in respect of Abadi land bearing Khasra No. 3484/1, area 8.615 hectare. Within this area, the suit property specifically comprises a portion measuring 23 feet in length and 18.9 in width, situated at Village Baloda, Ward No.4, District Janjgir-Champa (CG). The disputed land is the ancestral property of the plaintiff, son of Dulaku Ram Dewangan. The plaintiff is the cultivator and in possession of the said land, which was originally acquired by his father from one Gajraj, son of Devnath Dewangan through a registered sale-deed dated 11.12.1993 (Ex.P/1). Since that date, the plaintiff and his predecessor have remained in continuous and peaceful possession of the suit property. In the year 2006, defendants 1 to 6 attempted to take possession of the land under the pretext of constructing a stage for cultural programme through the Nagar Panchayat, Balauda. The plaintiff objected to this interference and submitted a written complaint to the President of the concerned Nagar Panchayat. It is further contended that defendants 1 to 6 by use of force and with the assistance of the concerned authorities, are attempting to construct a stage for cultural program upon the disputed land. Since suit property is in lawful title and possession of the plaintiff, he was constrained to file the suit for permanent injunction to restrain the defendants from such illegal interference.
3. Defendants 1 to 6 filed their written statement, categorically 4 denying the material allegations made in the plaint. It was averred that the plaintiff possesses no right, title or interest in the suit property, and therefore, is not entitled to the relief of permanent injunction. Unless and until it is established that the defendants are attempting to encroach upon the plaintiff's land, a decree for permanent injunction cannot be passed. Since the appellant/ plaintiff has failed to prove that he is the title holder or in lawful possession of the land in question, the defendants cannot be restrained by way of permanent injunction and accordingly, the suit is liable to be dismissed. Defendants 7 & 8 also filed their separate written statement denying the plaint averments. They pleaded that the plaintiff has neither title to nor possession of the suit property. It was further averred that the defendants have constructed a stage upon Abadi land and as such, the plaintiff is not entitled to permanent injunction without proving both title and settled possession. In fact, the suit itself is wholly misconceived and filed on vexatious grounds and is, therefore, liable to be dismissed. The trial Court, upon appreciation of the evidence on record, has dismissed the plaintiff's suit by holding that the plaintiff failed to prove his title and possession over the suit property.
4. Mr. Ankita Goswami, Advocate appearing on behalf of Mr. PK Patel, Counsel for the appellant/plaintiff submits that the plaintiff is having clear title over the suit property, which is evident from the registered sale-deed (Ex.P/1) executed in favour of the plaintiff's predecessor way back on 11.12.1933. She submits that based on 5 this registered document, the plaintiff has remained in continuous and peaceful possession of the property. The defendants started interfering with the said possession when the plaintiff commenced construction over the suit land. After the objections raised by the private defendants, respondents 7 & 8 issued a show cause notice directing the plaintiff to remove the building materials collected on-site. Furthermore, the plaintiff made complaints (Ex.P/5 & P/6 respectively) before the concerned Collector and raised objections during construction of a stage. She submits that the Khasra Map (Ex.P/7) and Nazri Naksha (Ex.P/8) annexed with the plaint demonstrate the plaintiff's ownership and possession, as well as the construction raised by the plaintiff, which has been disputed by the defendants. Consequently, in order to restrain the defendants, the plaintiff has rightly instituted the suit. She further submits that while the trial Court considered the subject sale- deed, it failed to consider the plaintiff's long-standing ancestral possession since 1933. In doing so, the trial Court travelled to an area by focusing on issues irrelevant to the question of possession. She further submits that the measurement of the suit land, along with its specific boundaries, has been clearly detailed in the pleadings and supporting documents. Therefore, the trial Court's finding that the identification of the suit land is disputed, purportedly based on a perusal of the sale-deed and documentary evidence, is contradictory to the evidence on record. The trial Court failed to properly appreciate both the documentary and oral 6 evidence. She lastly submits that the impugned judgment is palpably erroneous and the plaintiff's suit deserves to be decreed in his favour.
5. We have learned counsel for the appellant and have also perused the record with utmost circumspection.
6. From a bare perusal of the record, it appears that although the appellant/plaintiff is claiming relief of permanent injunction based on title, the sale-deed (Ex.P/1) does not contain a clear description of property. The measurements of the property are described as below :
7. The sale-deed (Ex.P/1) does not specify the Khasra number or provide any identification of the land. Therefore, despite the existence of a registered sale-deed in favour of the plaintiff's predecessor, the plaintiff cannot claim a clear and unequivocal right based on such a deficient document. Though the plaintiff has sought to rely upon the Khasra Map (Ex.P/7) but this document does not ascertain the actual location of the suit land. Moreover, 7 the Nazri Naksha (Spot Map) (Ex.P/8) is not sufficient to determine either the physical identity of the suit property or the factum of the plaintiff's possession. There is no evidence on record such as the demarcation report or testimony from a Revenue Department official, to substantiate the claim of actual possession or to identify the suit property. Since the suit property cannot be identified based on the evidence produced by the plaintiff, it is impossible to acertain valid possession of the land or verify the alleged encroachment by the defendants. In the absence of a clearly defined boundary, no finding of unlawful possession can be sustained. Since there is lack of identification of the disputed area, the trial Court has rightly held, based on both documentary and oral evidence, that the relief sought by the plaintiff to restrain the defendants from interfering with his possession cannot be granted. Even otherwise, from the perusal of the record, it appears that the defendants have already constructed a permanent structure (stage) on the suit land. Consequently, in the absence of a prayer for the recovery of possession, a suit for permanent injunction is not maintainable.
8. Although the plaintiff filed an application under Order 26 Rule 9 of the CPC for appointment of a Court Commissioner to identify the the disputed and verify possession, the trial Court has dismissed the same holding that the application was filed at a highly belated stage after the closure of the plaintiff's evidence, which shows an improper attempt to collect the evidence to fill gaps in the case. In 8 our view, the trial Court has rightly rejected the said application. Furthermore, it appears that the order dismissing the application under Order 26 Rule 9 of the CPC was never challenged before a higher forum and therefore, it has attained finality..
9. In a judgment rendered in the matter of Haryana Waqf Board Vs. Shanti Sarup and others reported in (2008) 8 SCC 671, it was held by the Hon'ble Supreme Court that if necessary, the trial Court should allow the application filed under Order 26 Rule 9 of the CPC for ascertaining the real position of the land in dispute. The aforesaid judgment reads as follows :
1. Leave granted.
2. This is an appeal filed by the Punjab Waqf Board who was the plaintiff in a suit for declaration and injunction. The High Court in the second appeal had summarily dismissed the appeal on the ground that the second appeal was concluded by the concurrent findings of fact arrived at by the courts below. From the judgment itself, it would appear that the Board had failed to prove that the respondents have encroached upon any land belonging to the appellant Board. In view of the aforesaid position, the second appeal was summarily dismissed by the High Court.
In our view, the High Court ought not to have dismissed the suit summarily merely on the ground that the second appeal was concluded by the concurrent findings of fact.
3. The dispute that was raised by the parties before the court was whether the respondent had encroached upon any land belonging to the appellant Board. Therefore, it cannot be in dispute that the 9 dispute was in respect of the encroachment of the suit land.
4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.
5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.
6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.
7. For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then decided the second appeal on merits. Accordingly, we set aside the judgment and 10 decree passed in the second appeal and the second appeal is restored to its original file.
8. The High Court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs.
10. Reverting to the facts of the present case, in light of the principles laid down in the aforementioned case, it is evident that since no Khasra Number is mentioned in the sale-deed and the document fails to disclose the identity of the land, there is no legal ground to appoint a Court Commissioner to ascertain its identity. Moreover, a Commissioner cannot be tasked with identifying a property, where the title deed fails to define or describe the said land. In the evidence also, the identification and encroachment is lacking.
11. In view of the aforesaid discussion, the concerned trial Court has rightly dismissed the suit of the plaintiff, which does not call for any interference under Section 96 of the CPC.
12. The appeal being devoid of merits, is liable to be and is hereby dismissed.
Sd/- Sd/-
(Sanjay S. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Shyna Ajay