Vijay Choudhary vs Devendra Kumar Nayak
2021 Latest Caselaw 1530 Chatt

                                  1

                                                                   NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                      Reserved on 16.07.2021
                     Pronounced on 03.08.2021

                         FA No. 193 of 2015

 Prem Prakash Shrivastava, S/o R.L. Shrivastava, Aged About 36 Years,
  R/o Vikas Nagar, Kotra Road, Raigarh, Tahsil And District Raigarh
  Chhattisgarh.                       ---- Appellant/Defendant No.3

                               Versus

1. Devendra Kumar Nayak, S/o Ramesh Kumar Nayak Aged About 31 Years
   Occupation Doctor, R/o Nayapara, Madva, Tahsil Dabhra, District Janjgir
   Champa Chhattisgarh, (Plaintiff)

2. Kailash Sharma, S/o Ravidatta Sharma, Aged About 47 Years R/o
   Baikunthpur, Raigarh, Tahsil And District Raigarh Chhattisgarh
   (Defendant No.1)

3. Vijay Chaudhary S/o Roshan Lal Chaudhary Aged About 25 Years R/o
   Kotra Road, Raigarh, Tahsil And District Raigarh Chhattisgarh,
   (Defendant No.2)

4. State Of Chhattisgarh     Through    Collector,   Raigarh Chhattisgarh.
   (Defendant No.4)                                     ---- Respondents

FA No. 200 of 2015

 Vijay Choudhary, S/o Roshan Lal Choudhary, Aged About 34 Years, R/o Kotraroad, Raigarh, District Raigarh, Chhattisgarh

--Appellant/Defendant No.2 Versus

1. Devendra Kumar Nayak S/o Ramesh Kumar Nayak Aged About 31 Years R/o Nawapara, Madwa, Tahsil Dabhra, District Janjgir-Champa, Chhattisgarh (Plaintiff),

2. Kailash Sharma S/o Ravidutta Sharma Aged About 47 Years R/o Baikunthpur, Raigarh, District Raigarh, Chhattisgarh (Defendant No.1),

3. Premprakash Shrivastava S/o R.L. Shrivastava Aged About 36 Years R/o Vikasnagar, Kotraroad, Raigarh, Tah. And Distt. Raigarh, Chhattisgarh (Defendant No.3),

4. State Of Chhattisgarh Through The Collector, Raigarh, Chhattisgarh (Defendant No.4),

---- Respondents

For Appellants : Shri Manoj Paranjape and Shri Vikram Dixit,, Advocates.

For Respondent No.1                : Shri Sandeep Dubey, Advocate.
For Respondents No. 2 & 3          : None, though served.
For Respondent No.4/State          : Ms. Reena Singh, P.L.

                    Hon'ble Shri Justice Sanjay S. Agrawal

                                  C.A.V. Judgment

1. Both these appeals have been preferred by the Defendants under

Section 96 of the Code of the Civil Procedure, 1908 (hereinafter referred to as

the CPC) questioning the legality and propriety of the judgment and decree

dated 15.05.2015 passed in Civil Suit No. 7-A/2011, whereby the Plaintiff's claim

for declaration of title and injunction has been decreed. Since the judgment and

decree under appeals is common, they are being disposed of by this common

judgment. The parties to this Appeals shall be referred hereinafter as per their

description in the Court below.

2. Briefly stated the facts of the case are that a claim for declaration of title

and injunction in a mandatory form for removal of the illegal construction raised

by the Defendants during pendency of suit was made by the Plaintiff with regard

to the property in question bearing Kh.No.2/11 d/6 admeasuring 0.101 hectare

situated at village Baikunthpur, as described in red colour in plaint schedule - A,

submitting, inter alia, that one Laxmin Bai, D/o Samund Rawat was the owner of

the property bearing Kh.No. 2/11d/1 admeasuring 0.444 hectare and from

whom, he purchased a part of it, i.e., 0.101 hectare under the registered deed of

sale dated 15.06.1998 and which was numbered as Kh.No. 2/11 d/6

admeasuring 0.101 hectare upon mutation. According to the Plaintiff, the said

Laxmin Bai by executing another registered deed of sale dated 08.07.2002 had

sold Kh.No.4/1 area 0.271 hectare and Kh.No.5/1 area 0.065 hectare to

defendant No.1 - Kailash Sharma, who in turn, had sold the part of it to

Defendants No.2 & 3, namely, Vijay Choudhary and Prem Prakash Shrivastava

by executing two registered deeds of sale, both dated 15.10.2003. It is pleaded

further that the said Defendant Kailash Sharma, after purchasing the suit

property, has created a forged document by incorporating the digit "4" under the

digit "5" by his hand-writing at page No.3 of it and converted the said Kh.No.5/1

into Kh.No.5/4/1 and by changing further the map of it, the description of his

(Plaintiff) land has been shown therein, which he purchased under the sale deed

dated 15.06.1998. It is pleaded further that Defendants No. 2 & 3, after

purchasing the same from said Defendant No.1, started the construction work,

and therefore, he has been constrained to initiate the proceedings before the

Tahsildar Raigarh for restraining them from raising the alleged work.

3. It is pleaded further that the alleged Kh.No.5/4/1 admeasuring 0.065

hectare as shown in sale deed dated 08.07.2002 was not recorded in the name

of his vendor Laxmin Bai and instead Kh.No.5/1 area 0.016 hectare was in fact

recorded in the Register maintained by the Deputy Registrar, Raigarh.

4. It is put forth further that the property, which was purchased by said

Defendant Kailash Sharma under the sale deed dated 08.07.2002 was 1000 feet

away from the main road and is covered by the agricultural lands, and therefore,

the alleged Kh.No.5/4/1 and the map, as shown therein, is apparently

manipulated, created and, thus, a forged document. According to the further

averments made in the plaint, the map attached with it was recommended to be

rectified by the Tahsildar, Raigarh on 01.08.2002 and was accordingly rectified

on 25.10.2002 without providing any opportunity of hearing to him. It is thus

pleaded that the alleged rectification of map made in the alleged subsequent

sale is apparently a manipulated and a concocted document and is, therefore,

null and void and the subsequent sales as made by him in favour of Defendants

No. 2 & 3 on 15.10.2003 are also null and void and/or not binding upon him.

5. While denying specifically the alleged allegations of manipulation in the

sale deed dated 15.10.2003, it is pleaded by Defendant No.1 - Kailash Sharma

that prior to the alienation of the land in question to the Plaintiff, said Laxmin Bai

had sold her property to three different persons and was not in possession of the

land bearing Kh.No. 2/11d/1 admeasuring 0.444 hectare, as alleged by the

Plaintiff. It is stated further that the Plaintiff has no right to question the sale

executed in his favour by said Laxmin Bai on 08.07.2002. It is contended further

that the alleged dispute of identify of land could be decided only by way of

demarcation and the claim as made is barred by jurisdiction under Section 257

of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as the

Code of 1959).

6. While reiterating the aforesaid defence as taken by Defendant No.1,

Defendants No. 2 & 3 pleaded that they are the bona fide purchasers and have

raised alleged construction after taking the loan from the Bank. It is stated

further that the claim as made without impleading the necessary party is liable to

be dismissed.

7. The Plaintiff has examined himself as P.W.1, Shastri Kumar Pradhan

(Patwari) and Shivnandan Sahu (Revenue Inspector) as P.Ws.2 & 3, in support

of his claim, while none was examined by the Defendants in rebuttal.

8. The trial Court, after considering the evidence led by the Plaintiff, arrived

at a conclusion that by virtue of the registered deed of sale dated 15.06.1998

(Ex.P.4), the Plaintiff has acquired his ownership with regard to the property in

question bearing Kh.No. 2/11d/6 admeasuring 0.101 hectare adjacent to eastern

side of the main road and held further that the description of the said property

purchased by the Plaintiff has been shown illegally in the map attached with

Kh.No.5/4/1. In consequence, the registered deed of sale dated 08.07.2002

(Ex.P.5) executed in favour of Defendant No.1 Kailash Sharma and the

subsequent sales (Ex.P.6 & Ex.P.7) as made by him in favour of Defendant No.2

- Vijay Choudhary and Defendant No.3 - Prem Prakash are null and void and not

binding upon the Plaintiff. It held further that Defendants No. 2 & 3 have raised

the alleged construction over the property in question during the pendency of the

suit and the Plaintiff is thus held to be entitled to get the vacant possession of it

after its removal.

9. Learned counsel appearing for the appellants/Defendants submits that

the finding of the trial Court holding that Defendant No.1 Kailash Sharma has

created a forged document by interpolating the digit "4" under "5" in page No.3

of the alleged sale deed dated 08.07.2002 (Ex.P.5) by his own hand and thereby

converted the same as Kh.No.5/4/1 instead of Kh.No.5/1 by describing the

alleged property of the Plaintiff in the map attached with it is apparently contrary

to law. It is contended further that the Plaintiff being a stranger had no right

whatsoever to question the validity of the same and contended further that since

the dispute is of the identity of the land in question, and therefore, in absence of

demarcation, the Court below ought not to have decreed the suit as such. He

also moved an application on 18.01.2021 under Order 41 Rule 27 of CPC

seeking production of additional documentary evidence in order to show that

the Plaintiff's vendor was not possessed the land, i.e., 0.101 hectare, which was

purchased by the Plaintiff under sale deed dated 15.06.1998 (Ex.P.4), and

therefore, the Plaintiff's claim is liable to be dismissed.

10. On the other hand, learned counsel appearing for respondent

No.1/Plaintiff has supported the judgment and decree under appeal as passed

by the trial Court.

11. I have heard learned counsel appearing for the parties and perused the

entire record carefully.

12. First of all, it is necessary to deal with the application filed on 18.01.2021

(marked as I.A.No.05/2021) under Order 41 Rule 27 of CPC by the Appellant -

Vijay Choudhary in F.A.No. 200/2015 seeking production of certified copies of

the documents known as the land record showing the acquisition of 0.057

hectares of land out of the original Kh.No.11/1d/1 admeasuring 0.444 hectares

held by one Hiralal who was the brother of Plaintiff's vendor, namely, Smt.

Laxmin Bai; copies of registered deeds of sale, dated 15.04.1994, 14.03.1995

and 06.01.1996, purported to have been executed by said Smt. Laxmin Bai in

favour of Shiv Kumari and others with regard to 0.121 hectares along with 14

feet, which was left for passage, likewise in favour of Saraswati Bai with regard

to 0.048 hectares along with 8 feet x 66 feet was left for passage and in favour

of Ramesh with regard to 0.105 hectares, out of the alleged Kh.No.11/1 d/1

where 12 feet was left for passage, respectively. Certified copies of those

documents have been sought to be produced in order to demonstrate the facts

that after the alienation of these piece of lands, the total land left with the

Plaintiff's vendor Laxmin Bai was 0.053 hectare, and therefore, she had no right

to execute the sale deed (Ex.P.4) with regard to 0.101 hectares out of Kh.No.

11/1d/1 admeasuring 0.444 hectares. According to the Appellant, these

documents were given to the counsel during trial, but the same could not be filed

before the trial Court. It appears that the requisite plea in this regard was made

by Defendants in their written statements, therefore, in my opinion, these

documents, marked as Annexures "A" and "B" alone are required to be taken on

record in order to provide substantial justice to the parties, while rest of the

documents attached with this application are refused.

13. Accordingly, the application, marked as I.A.No.05/2021, is hereby allowed

in part to the extent as observed herein above.

14. It is to be noted here further that during trial, the Plaintiff had amended

the plaint vide order dated 30.03.2005 whereby the relief of removal of

superstructure, alleged to have been raised by Defendants No. 2 & 3, was

claimed. However, neither the claim was properly valued nor the proper Court

fee, required to be paid under the law, was paid nor the suitable direction was

issued by the trial Court in this regard. At this juncture, it is to be noted the

principles laid down by the Supreme Court in the matter of Tajinder Singh

Ghambhir and another vs. Gurpreet Singh and others reported in (2014) 10

SCC 702 wherein it has been observed at paragraph 8 as under:-

"8. The scheme of the above provisions is clear. It casts duty on the court to determine as to whether or not court fee paid on the plaint is deficient and if the court fee is found to be deficient, then give an opportunity to the plaintiff to make up such deficiency within the time that may be fixed by the court. The important thread that runs through sub- sections (2) and (3) of Section 6 of 1870 Act is that for payment of court fee, time must be granted by the court and if despite the order of the court, deficient court fee is not paid, then consequence as provided therein must follow."

15. In the light of the aforesaid principles laid down by the Supreme Court, it

is clear that the duty is cast upon the trial Court to determine as to whether or

not court fee paid on the plaint is deficient and if the court fee is found to be

deficient, then court is bound to give an opportunity to the Plaintiff to make up

such deficiency within the time which may be fixed by the Court.

16. Since the Court below has failed to issue a suitable direction in the light of

the provision prescribed under Section 6 of the Act, 1870, the

Plaintiff/Respondent No.1 is, therefore, directed to make a suitable application

before the trial Court in order to correct the valuation of the suit in its proper

manner and also for depositing the requisite court fee, if any, thereon. It is

directed further that in the event of moving such an application, the trial Court

shall decide the same in accordance with law..

17. In view of the aforesaid background, the matter is remitted to the learned

Second Additional District Judge, Raigarh and/or the concerned Court with a

direction to record the evidence based upon the aforesaid documentary

evidence alone after providing sufficient and reasonable opportunity of hearing

to the parties in accordance with law and then return the evidence to this Court

together with its findings thereon and the reason therefor. The trial Court shall

also decide the application, if filed, with regard to the aforesaid observation and

shall specify the time for payment of deficient court fee, if found to be paid by the

Plaintiff.

18. Registry is directed to transmit the entire file/record to the concerned

Court below while retaining the file of this appeal awaiting the evidence and

findings of the Court below, as observed herein above and list the appeal

thereafter for hearing.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani