Chattisgarh High Court
Shridhar Chandrakar vs Chhabilal Dewar And Anr on 12 April, 2022
Page 1 of 3
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
SA No. 71 of 2013
Shridhar Chandrakar Vs. Chhabilal Dewar & another
12.04.2022 Mr. Vivek Tripathi, counsel for the appellant.
Mr. Prafull N. Bharat, Sr. Advocate with Mr. Keshav Dewangan,
counsel for respondent No. 1.
Mr. Avinash K. Mishra, Govt Advocate with Ms. Ishwari Ghritlahre,
Panel Lawyer for the State/ respondent No. 2.
The appellant/plaintiff has filed the present second appeal under
Section 100 of the C.P.C. challenging the impugned judgment and
decree dated 21.11.2012 passed by Second Additional Sessions Judge,
Mahasamund (C.G.) in Civil Appeal No. 34A/2012 arising out of
judgment and decree passed by learned Civil Jude Class-I,
Mahasamund, District- Mahasamund (C.G.) in Civil Suit No. 55A/2009 by
which the suit filed by the plaintiff for grant of possession and permanent
injunction of the land bearing Khasra No. 915/1 & Khasra No. 915/2
situated at Patwari Halka No. 142/89, Revenue Division- Mahasamund,
District- Mahasamund (C.G.), has been dismissed.
From bare perusal of the plaint and the judgment passed by the
trial Court, it is clear that there is dispute with regard to demarcation and
boundary of the property, this can be examined by the Commissioner
only. Hon'ble Supreme Court in the case of Haryana Waqf Board vs.
Shanti Sarup and others reported in (2008) 8 SCC 671 has held that
second appeal should not have been dismissed summarily and Local
Commissioner should be appointed for the purpose of demarcation in
respect of the suit land. Again Hon'ble the Supreme Court in Rahul S.
Shah vs. Jinendra Kumar Gandhi and others reported in (2021) 6
SCC 418 has also held that though it is a case of execution of decree,
but Hon'ble Supreme Court in exercise of power under Article 142 read
with Article 141 and Article 144 of the Constitution of India has
emphasized for appointment of Commissioner if there is dispute with
regard demarcation of property and the Hon'ble Supreme Court has held
that in appropriate cases, where the possession is not in dispute and not
a question of fact for adjudication before the Court, the Court may
appoint Commissioner to assess the accurate description and status of
the property. In the present case also there is dispute of demarcation of
the property which can only be decided with the help of Commissioner.
With the consent of the parties, Mr. Sanjeev Kumar Panda,
Advocate who is empanelled in the Legal Aid Committee Mahasamund,
is appointed as Commissioner for demarcation of the suit land.
It is directed that the fee paid to the Commissioner is fixed for Rs.
15,000/-. Out of which Rs. 12,000/- shall be incurred from the appellant/
plaintiff and Rs. 3,000/- shall be incurred from respondent No. 1/
defendant.
The Commissioner is directed to submit his report on or before
10th June, 2022 in a sealed envelop mentioning the case number on the
envelop. The Commissioner is also directed to issue notice to the parties
for demarcation of the suit land through registered post with
acknowledgement for appearance of the parties with regard to
demarcation of the land.
The Collector, Mahasamund is also directed to provide assistance
to the Commissioner by providing services of Tahsildar and other
revenue officer which are essential for proper demarcation of the suit
land.
Learned counsel for the plaintiff and the defendant are directed to
provide complete set of proceeding of the trial Court for perusal of the
Commissioner.
A copy of this order be supplied to the Government Advocate for
issuing appropriate direction.
A copy of this order be sent to the Collector, Mahasamund for
compliance.
List this case immediately after submission of the demarcation
report by the Commissioner in last week of June, 2022.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
