Sushil Sahu vs Dinesh Kumar Agrawal
2025 Latest Caselaw 1880 Chatt

Chattisgarh High Court

Sushil Sahu vs Dinesh Kumar Agrawal on 12 February, 2025

                                          1




Digitally signed
by RAMESH                                                2025:CGHC:7418
KUMAR VATTI                                                               NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR
                            WP(227) No. 146 of 2025
   1. Sushil Sahu S/o Late Shri Firturam Sahu Aged About 45 Years R/o
      Village Kalmi Near Kotra Road Canal Tahsil And District - Raigarh
      (C.G.) (Judgment Debtor No. 1)
   2. Shanti Devi Sahu W/o Late Shri Naresh Kumar Sahu Aged About 42
      Years R/o Near Itwari Bazar Shahid Chowk Raigarh Tahsil And District -
      Raigarh (C.G.) Debtor No . 4 )
   3. Dular Singh Thakur S/o Mohan Singh Thakur Aged About 45 Years R/o
      Village Kalmi Near Kotra Road Railway Crossing Raigarh Tahsil And
      District - Raigarh (C.G.) (Debtor No. 6 )
                                                                    ... Petitioners
                                        Versus
   1. Dinesh Kumar Agrawal S/o Late Shri Mahaveer Prasad Agrawal Aged
       About 62 Years R/o In Front Of Main Hospital Raigarh Tahsil And
       District - Raigarh (C.G.) (Decree Holder)
   2. Sunil Sahu S/o Late Shri Firturam Sahu Aged About 43 Years R/o
      Village Kalmi Near Kotra Road Canal Tahsil And District - Raigarh
      (C.G.) ( Judgment Debtor No. 2)
   3. Krishna Sahu S/o Late Shri Firturam Sahu Aged About 35 Years R/o
      Village Kalmi Near Kotra Road Canal Tahsil And District - Raigarh
      (C.G.) (Judgment Debtor No. 3 )
   4. Shyamlal Sahu @ Bunty S/o Gajalal Sahu Aged About 35 Years R/o
       Indira Nagar Raigarh Tahsil And District - Raigarh (C.G.) (Judgment
       Debtor No. 5)
                                                                 ... Respondents

For Petitioners : Mr. Sourabh Sahu and Mr. Ankit Singh, Advocates For Respondents : None

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 12/02/2025

Heard on admission.

1. The petitioners have filed this petition seeking the following relief(s):-

"10.i That this Hon'ble Court may kindly be pleased to quash the order dated 09/12/2024 passed in Civil Execution No. 4/2003, passed by learned First Civil Judge Class II, Raigarh (C.G.)

10.ii That this Hon'ble Court may kindly be pleased to direct the Court of learned First Civil Judge Class II, Raigarh (C.G.) to appoint Commissioner to conduct local investigation.

10.iii Any other relief, which this Hon'ble Court deems fit and proper, may also kindly be granted to the petitioners, in the interest of justice.

10.iv Cost of the petition may also be granted to the petitioners."

2. Mr. Sourabh Sahu, learned counsel appearing for the petitioners would

submit that the plaintiff/respondent No. 1 herein filed a suit for

declaration of title and permanent injunction before the Court of

Second Civil Judge Class-I, Raigarh pertaining to the land bearing

Survey No. 390/1 admeasuring 0.231 hectare situated at Village Kalmi,

Patwari Circle No. 14, Tehsil and District Raigarh. It was averred that

the petitioners have encroached over the subject land. He would

further submit that the civil suit was dismissed by the learned trial Court

vide judgment and decree dated 17.07.2018. He would contend that

the first appeal preferred by respondent No. 1 was decreed vide

judgment and decree dated 25.02.2019, wherein the petitioners were

directed to deliver the possession of 6985 sq.ft. land to respondent

No.1 and the decree of permanent injunction was also passed. He

would also submit that respondent No.1 moved an application for

execution under Order 21 Order 32(5) of CPC. He would further

contend that an application under Order 26 Rule 9 of CPC read with

Section 151 of CPC was moved for demarcation of the subject land

inter alia on the ground that part of the suit land was acquired by the

State for the construction of a canal and an award was also passed in

the year 2009. He would also submit that the remaining 0.098 hectare

land got divided into 02 parts on account of the construction of a canal.

He would argue that without demarcation, the decreed land cannot be

identified. He would further argue that the learned Executing Court

ought to have allowed the application moved by the petitioners under

Order 26 Rule 9 of CPC for elucidating the identity of the land.

3. I have heard learned counsel for the petitioners.

4. In the application moved under 26 Rule 9 of CPC, in para-3, the

petitioners have stated that they are not encroachers and for the

identification of land, the demarcation is necessary.

5. The learned first appellate Court in Civil Appeal No. 68/2018 vide

judgment and decree dated 25.02.2019 has categorically held that the

petitioners have encroached over 6985 sq.ft. land. Further, the

petitioners have been directed to hand over the possession of the

subject land to the plaintiff/respondent No.1, therefore, the

petitioners/judgment debtors cannot be permitted to take a plea that

they are not encroachers. The petitioners have not challenged the

judgment and decree passed by the learned District Judge, Raigarh in

Civil Appeal No. 68/2018 and it has attained finality. The petitioners

also failed to demonstrate that any other survey number entered in

their name is available adjacent to the subject property. The petitioners

have disputed the finding recorded by the learned first appellate Court

in Civil Appeal, which is not permissible at the execution stage.

6. Taking into consideration the above-discussed facts, I do not find any

good ground to interfere with the order passed by the learned

Executing Court.

7. Consequently, the petition fails and is hereby dismissed at the

admission stage. No Costs.

Sd/-

(Rakesh Mohan Pandey) Judge

vatti