Chattisgarh High Court

Smt. Neelima Thakur vs Udaibhan Singh Thakur on 25 March, 2022

                                       1



                                                                      NAFR

              HIGH COURT of CHHATTISGARH, BILASPUR
                             WP227 No. 176 of 2022
   •     Smt. Neelima Thakur W/o Shri Fakir Mohan Singh, aged about
         58 Years R/o behind Dena Bank Branch, Indira Ward
         Jagdalpur, Distt. Bastar, Chhattisgarh.
                                                             ------Petitioner

                                    VERSUS
   •     Udaibhan Singh Thakur, son of late Sampat Singh, aged about
         88 years, resident of Indira Ward, Near Gurunanak School,
         Jagdalpur, District Bastar, Chhattisgarh.
                                                         -------Respondent

          For Petitioner             : Mr. B.P. Sharma, Advocate alongwith
                                       Ms. Anmol Sharma, Advocate
          For Respondent            : None.



        Single Bench: Hon'ble Shri Parth Prateem Sahu, Judge
                                      ORDER

25/03/2022

1. Petitioner has filed this writ petition with the following reliefs.

"10. a A writ and/or an order in the nature of mandamus do issue calling for the records of the court below pertaining to the case of the petitioner for perusal of this Hon'ble Court.

b. A writ and/or an order in the nature of certiorari do issue quashing the impugned order dated 25.10.2021 (Annexure P-1) passed by the Court below in CS No. 7A/2016 being perverse, contrary to law and not sustainable in law and/or pass such other orders as this Hon'ble Court may deem fit in the peculiar factual matrix of the case and in the interest of justice.

c. Cost of the proceedings.

d. Any other writs and directions that may be deemed fit and just in the facts and circumstances of case. "

2. Mr. B.P. Sharma, learned counsel for petitioner would submit that

petitioner/ plaintiff has filed the Civil Suit for declaration of title

and possession of property in dispute, details of which are

mentioned in paragraph 1 of the plaint annexed along with writ

petition as Annexure P-2. He submits that petitioner is owner of

8331 sqft of land of the disputed khasra No. 161, 165/1A, 165/4

of which on part of land measuring 528 sqft, respondent/

defendant is in illegal possession by way of encroachment.

Petitioner after getting her land demarcated from the Revenue

Officer filed Civil Suit for declaration of title and possession.

Defendant submitted written statement based upon which issues

were framed and plaintiff's evidence has already been recorded

and it is at the stage of recording of evidence of defendant.

Defendant filed an application under Section 151 of CPC before

the trial Court seeking prayer for a direction to Tahsildar for

getting the land demarcated. He contended that application filed

under Section 151 of CPC invoking inherent jurisdiction is not

maintainable when specific provision is available under Order 26

Rule 9 of CPC. He further submits that learned trial Court erred in

allowing the application overlooking the aforementioned legal

provision and further not considering the fact that, that application

is filed by defendant for demarcation in a suit filed by petitioner/

plaintiff based on the demarcation report submitted by Revenue

Inspector. Learned counsel read-over the contents of the

pleadings available in the plaint as well as the application under

Section 151 of CPC and the reply in support of his contention.

3. I have heard learned counsel for petitioner and perused the

record of petition.

4. Perusal of plaint would show that in paragraph 6 of the pleadings,

petitioner has pleaded with respect to the cause of action for filing

suit upon getting her land demarcated and in the demarcation

report, it is mentioned that Respondent/ Defendant is in

encroachment of 528 sqft of land of petitioner. The written

statement filed by Respondent/ Defendant is also available in

which he has specifically denied the knowledge of demarcation

already done as well as non-issuance of notice by the Revenue

Inspector and without issuance of any notice the land was

demarcated. Defendant at the initial stage of submission of

written statement to the plaint took plea that the demarcation of

land has been conducted without his knowledge and without any

notice. Defendant immediately after filing of written statement has

again moved an application before the Tahsildar/ revenue

authority for getting his land demarcated which was dismissed

vide order dated 15.09.2021 on the ground that the Civil Suit is

already pending before the competent court and the demarcation

would affect the final outcome of the Civil Suit. It is then the

respondent/ defendant moved an application under Section 151

of CPC before the trial Court seeking only direction to revenue

authority for getting his land demarcated in accordance with law.

5. Copy of demarcation report submitted by plaintiff is also available

in the writ petition as Annexure P-6. Perusal of Annexure P-6

would show that the demarcation was done by the Revenue

Inspector and submitted report under the signature of Revenue

Inspector, Najul, Jagdalpur, mentioning that the permanent point

for demarcating the land was not available hence the

demarcation has been done based on identifying the nearest plot.

6. In the application filed under Section 151 of CPC, in paragraph 3,

defendant has specifically pleaded that the application submitted

before the Tahsildar for demarcating the land was rejected on

15.09.2021 taking note that the Civil Suit is pending consideration

between the parties. Learned trial Court considering the

pleadings made in the application and material available, came to

the conclusion that there is boundary dispute between the two

and after getting the land demarcated, factual dispute will

become more clear for proper adjudication and deciding the lis

between the parties, directed the Tahsildar to get the demarcation

of land bearing sheet No. 61, plot No. 161, 165/1 छ measuring

2350 sqft of land in accordance with law.

7. True it is that application under Section 151 of CPC is filed

invoking inherent jurisdiction of the trial Court but the relief sought

in that application is not prohibited in any other provision.

8. Hon'ble Supreme Court in case of Shipping Corporation of

India Ltd. v. Machado Brothers and others reported in (2004)

11 SCC 168 has held as under:

"20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application."

9. Hon'ble Supreme Court in its another judgment in Raja

Venkateswarlu and another v. Mada Venkata Subbaiah and

another reported in (2017) 15 SCC 659 has held as under

"3. But merely because an application for police protection was filed only under Section 151 CPC invoking the inherent jurisdiction, it cannot be a reason for the High Court to reject it and hold that the application should have been filed under Order 21 Rule 32 CPC. The crucial question is whether the executing court has jurisdiction. That is not disputed. The only thing is that an exact provision was not invoked. That by itself shall not be a reason for rejecting the application (see:

Municipal Corpn., Ahmedabad v. Ben Hiraben Manilal; (1983) 2 SCC 422 and T.

Nagappa v. Y.R. Muralidhar; (2008) 5 SCC

633). In case the executing court has the jurisdiction and has otherwise followed the procedure under the Rules, the action has to be upheld. One relevant question is also whether the judgment-debtor has suffered any injury or whether any prejudice has been caused to him. If the answer is in the negative, as in the instant case, the execution must proceed. The impugned judgment is hence set aside, the appeal is allowed and the order passed by the executing court is restored."

10. Considering the entire material available in the record, the nature

of dispute as pleaded in the pleadings of plaint, submission of

counsel for the petitioner, the law enunciated by Hon'ble

Supreme Court in the aforementioned rulings, this Court is of the

considered view that considering the nature of dispute between

the parties, which prima facie appears to be a boundary dispute,

trial Court has not committed any legal error in allowing the

application and directing for demarcation of land.

11. At this stage, learned counsel for petitioner submits that once

demarcation report is submitted by one of the Revenue Inspector

and the trial court by the impugned order considering the

boundary dispute arrived at conclusion, demarcation of land is