Chattisgarh High Court
Shakuntala Devi vs Chhunulal Upadhyay (Died) ... on 21 June, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No.26 of 2010
Shakuntala Devi, W/o Raja Lalit Kumar Singh,
Aged About 55 Years, R/o Rambhata, Raigarh,
Tahsil and District Raigarh, Chhattisgarh
Appellant
Versus
1. Chhunulal Upadhyay (Died) Through Legal Heir
(A) Amita Upadhyay, D/o Chhunnulal Upadhyay,
Aged About 30 Years, R/o Sonarpara, Tahsil and
District Raigarh, Chhattisgarh
2. Maal Jamadar, Tahsil Office, Raigarh, Tahsil
and District Raigarh, Chhattisgarh
3. Patwari, Halka No.13, Tahsil Office, Raigarh,
Tahsil and District Raigarh, Chhattisgarh
4. State of Chhattisgarh Through Collector,
Raigarh, Tahsil and District Raigarh,
Chhattisgarh
Respondents
For Appellant Mr. Vipin Punjabi, Advocate
Hon'ble Justice Shri Sanjay K. Agrawal
Order On Board
21/06/2021
1. Heard on admission and formulation of
substantial question of law in this second
appeal preferred by the appellant/plaintiff.
2. By the impugned judgment and decree, the First
Appellate Court has dismissed the appeal
preferred by the appellant/plaintiff vide
judgment and decree dated 30.01.2009 passed by
the learned 3rd Additional District Judge
(FTC), Raigarh (C.G.) in Civil Appeal
No.58A/2008 affirming the judgment and decree
of the Trial Court dated 28.02.2006 passed by
the learned Civil Judge ClassI, Raigarh
(C.G.) in Civil Suit No.13A/2004, whereby the
learned Trial Court dismissed the suit
preferred by the appellant/plaintiff.
3. Mr. Vipin Punjabi, learned counsel for the
appellant/plaintiff, would submit that both
the Courts below have erred in concurrently
holding that the plaintiff is not entitled for
decree for declaration of title, permanent
injunction and possession. As such, the appeal
be admitted for hearing by formulating
substantial question of law.
4. I have heard learned counsel for the
appellant, considered his submissions made
hereinabove and also went through the records
with utmost circumspection.
5. The plaintiff filed a suit for declaration of
title, possession and permanent injunction and
declaring the order of the Revenue Court dated
16.06.2000 as illegal stating interalia that
she is the title holder of Khasra No.192/3,
Area 160 sq. mtr., which her father has
purchased from Khedu Ram by registered sale
deed in the year 1962 and the land bearing
Khasra No.193/1, adjacent to the suit land, is
owned by defendant No.1. It was further
pleaded that the defendant No.1 got recorded
the suit land as Khasra No.193/1 in the
Revenue Records and tried to dispossess the
plaintiff from the suit land. The defendant
No.1 filed an application before the
Tahsildar, Raigarh for recovery of possession
of 160 sq. mtr. of land, a part of the suit
land. The Tahsildar passed an order on
16.06.2000 in Revenue Case No.4/A70/9798
directing dispossession of the plaintiff from
the suit land bearing Khasra No.192/3, area
160 sq. mtr. The order of the Tahsildar has
also been affirmed by the SDO vide order dated
30.01.2001 and admittedly the plaintiff was
dispossessed from the suit land on 16.02.2001.
As such the order of the Revenue Officer dated
16.06.2000 is invalid and the plaintiff is
entitled for the decree as claimed.
6. The defendant No.1 filed a written statement
stating interalia that he is the title holder
of the land bearing Khasra No.193/1, which has
been demarcated by the Revenue Officer and on
16.02.2001, the possession has been duly
handed over to the defendant No.1 as per the
order of the Revenue Court dated 16.06.2000
duly affirmed by the SDO in appeal preferred
by the defendant No.1.
7. In the first round of litigation, the Trial
Court passed judgment and decree dated
15.05.2004 in Civil Suit No.13A/2004, which
was set aside by the Appellate Court in Civil
appeal No.19A/2004 vide judgment and decree
dated 13.12.2004 and the matter was remitted
to the Trial Court for demarcation of the suit
land and to consider the suit afresh.
Accordingly, the Trial Court appointed
Commissioner and the Tahsildar, Raigarh
demarcated the suit land and the demarcation
report has been filed as ExC/1, in which no
party has raised any objection qua its
validity and correctness.
8. The Trial Court upon due consideration held
that the defendant No.1 has been delivered
possession of Khasra No.193/1 pursuant to the
order passed by the Revenue Court, which is
the land held by defendant No.1 and it does
not relate to the land of the plaintiff and
accordingly dismissed the suit. The First
Appellate Court has also dismissed the appeal
preferred by the plaintiff affirming the
judgment and decree of the Trial Court.
9. The Trial Court has clearly indicated that
pursuant to the demarcation order in the first
round of litigation, the demarcation of land
was done vide ExC/1 and the defendant No.1
has been found in possession of land bearing
Khasra No.193/1, which is held by him. Since
report of the Commissioner dated 24.09.2005
(ExC/1) demarcating the suit land is evidence
within the meaning of Order 26 Rule 10 (2) of
CPC, as Commissioner has also been examined
before the Trial Court but his report could
not be impeached by the plaintiff and no party
has raised objection and on the basis of the
said report, the finding has been recorded by
the two Courts below holding that the
defendant NO.1 is in possession of his own
land and as such, the finding recorded by the
two Courts below holding that the plaintiff is
not entitled for decree of declaration of
title, possession and the order passed by the
Revenue Court dated 16.06.2000 is in
accordance with law are finding of fact. The
finding recorded by the two Courts below is a
finding of fact based on the material
available on record, which is neither perverse
nor contrary to law.
10. I do not find any substantial question of law
for determination in this second appeal
preferred by the appellant/plaintiff. It
deserves to be and is hereby dismissed in
limine without notice to the other side. No
order as to cost (s).
Sd/
Sanjay K. Agrawal
Judge
Nirala
