Smt.Shanti Bai And Ors vs Ashwani Kumar And Anr
2023 Latest Caselaw 421 Chatt

                                      1

                                                                        NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                               SA No. 148 of 2014
   1. Smt.Shanti Bai, W/o Kali Ram Aged About 65 Years R/o Fandwani,
      R.I.Circle And Tah. Mungeli, Distt. Bilaspur C.G.
   1.A. Chitrekha D/o Late Kaliram Aged About 50 Years R/o Fandwani,
      R.I.Circle And Tah. Mungeli, Distt. Bilaspur C.G.
  1.B. Parvati D/o Late Kaliram Sahu Aged About 44 Years R/o Fandwani,
       R.I.Circle And Tah. Mungeli, Distt. Bilaspur C.G.
  2. Rambharos S/o Late Kaliram Sahu Aged About 43 Years R/o Fandwani,
     R.I.Circle And Tah. Mungeli, Distt. Bilaspur C.G.
  3. Ramkumar S/o Late Kaliram Sahu Aged About 33 Years R/o Fandwani,
     R.I.Circle And Tah. Mungeli, Distt. Bilaspur C.G.
  4. Thakur Ram S/o Late Kaliram Sahu Aged About 28 Years R/o
     Fandwani, R.I.Circle And Tah. Mungeli, Distt. Bilaspur C.G.
                                                               ---- Appellants
                                  Versus
   1. Ashwani Kumar, S/o Bhatkhaua Aged About 35 Years R/o Village-
      Bharewa, R.I.Circle & Tah. Pandariya, Distt. Kabirdham, Chhattisgarh
   2. State Of Chhattisgarh Through- Collector, Mungeli C.G.
                                                          ---- Respondents

      For Appellants:                       Shri Sanjay Patel, Advocate.
      For the State/Respondent No.2         Shri Ravi Pal Maheshwari, P.L.

Single Bench:Hon'ble Shri Sanjay S. Agrawal, J

Judgment/Order On Board

20.01.2023 Heard on admission.

1. This appeal has been preferred by the plaintiffs under Section 100 of

the Code of Civil Procedure, 1908, questioning the legality and

propriety of the judgment and decree dated 22.01.2013 passed in Civil

Appeal No.13-A/2011, whereby, the learned Appellate Court, while

affirming the judgment and decree dated 30.08.2010 passed by the

Civil Judge Class-II, Mungeli in Civil Suit No.20-A/2009, has dismissed

the appeal. The parties to this appeal shall be referred hereinafter as

per their descriptions before the Courts below.

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

and injunction was instituted by the plaintiff-Kaliram (since deceased

now represented by his legal representatives namely, Smt. Shanti Bai

and others) by submitting, inter alia, that the property in question

bearing khasra No.191/10 admeasuring 0.80 acre and Khasra

No.191/12 admeasuring 0.40 acre situated at village Fandwani Tahsil

and District Mungeli, was purchased under the registered deed of sale

dated 07.05.1973 and 31.10.1995 and are in possession since then and

adjoining to it, the land bearing khasra no.185/1 owned by defendant

no.1, namely, Ashwani Kumar, is situated. Further contention of the

plaintiff is that a proceeding as per the provisions prescribed under

Section 250 of the Chhattisgarh Land Revenue Code 1959 (hereinafter

referred to as the Code, 1959) was initiate by him (Ashwani Kumar) for

removal of their encroachment from his land before the Additional

Tahsildar, Mungeli, who, in turn, vide order dated 13.02.2007 (Ex.P-4)

has directed for the removal of the plaintiffs with regard to 1.27 acre of

the said land, i.e., khasra no.185/1. It is pleaded further that while

taking undue advantage of it, the said defendant is trying to interfere in

their peaceful possession, therefore, their predecessor-in-interest,

namely, Kaliram, the original plaintiff has been constrained to institute

the suit in the instant nature.

3. While contesting the aforesaid claim, it was pleaded by the defendant-

Ashwani Kumar that the plaintiffs' alleged land is adjacent to his land

i.e., bearing khasra no.185/1 and since the plaintiff-Kaliram had

encroached 1.27 of it illegally, therefore, a proceeding was initiate by

him under Section 250 of the Code of 1959 before the Court of

Additional Tahsildar Mungeli, who vide its order dated 13.02.2007 has

directed for the removal of said plaintiff-Kaliram with regard to 1.27 acre

of his land and, denying specifically that he is interfering in the plaintiffs'

land. The suit as framed is, therefore, liable to be dismissed.

4. From perusal of the record, it appears that admittedly vide registered

deed of sale dated 07.05.1973 (Ex.P-2), the plaintiff-Kaliram and his

brothers namely, Ghanau and Chhannu, all sons of Baijnath have

purchased a part of khasra no.191/1 admeasuring 1.74 acre from one

Bhatkhanwa and, it appears further that sons of said Kaliram namely,

Rambharos, Ramkumar and Thakur Ram have purchased the land in

question bearing khasra no.191/12 admeasuring 0.40 acre along with

khasra no.250/4 admeasuring 0.02 acre from one Budhyarin Bai under

the registered deed of sale dated 31.10.1995 (Ex.P-3). The plaintiffs are

thus in possession of their land as purchased under aforesaid sales

(Ex.P-2 & Ex.P-3) and are the owners of it. According to the plaintiff-

Kaliram, since his possession over the said land is being disturbed by

the said defendant, therefore, a suit in the instant nature has been filed

in order to protect the possession over it, i.e., Khasra No. 191/10

admeasuring 0.80 acres and khasra No. 191/12 admeasuring 0.40

acres of land. It thus, appears that there is no dispute with regard to the

property in question held by them and the land adjoining to it, i.e.,

khasra no.185/1 which is owned by said defendant-Ashwani Kumar.

The only dispute which appears to be whether the defendant is

interfering in peaceful possession of the plaintiffs or not. As such, the

application which was filed by the plaintiffs before the trial Court under

Order 26 Rule 9 of C.P.C. seeking appointment of Commissioner has

rightly been rejected by the trial Court vide its order dated 26.04.2008

and which was affirmed by the Appellate Court as the plaintiff cannot

collect the evidence by way of moving such an application and, instead

he himself has to establish the fact that the defendant is interfering his

peaceful possession. But, the plaintiff has failed to establish the said

fact as his own witnesses, namely, Shatrughan and Shobharam in their

evidence have not deposed that defendant-Ashwani is trying to

interfere the possession of the plaintiff. Consequently, the Courts below,

after due consideration of the evidence led by the parties, have rightly

arrived at a conclusion that the plaintiff has failed to establish the same

by way of any cogent and reliable evidence so as to call for any

interference in this appeal.

5. In view of above, the appeal being devoid of merit is accordingly

dismissed at the admission stage itself.

No order as to costs.

Sd/-

(Sanjay S. Agrawal) JUDGE vivek

HIGH COURT OF CHHATTISGARH, BILASPUR Order Sheet SA No. 148 of 2014 Smt. Shanti Bai & Ors. Versus Ashwani Kumar & Anr.

20.01.2023 Shri Sanjay Patel, counsel for the appellants.

Shri Ravi Pal Maheshwari, P.L. for the State/respondent 2. Arguments heard on admission.

Judgment/Order dictated in open Court. Signed and dated separately.

Sd/-

(Sanjay S. Agrawal) JUDGE

vivek