Lalit Kumar Sahsi vs Ajay Kushwaha
2026 Latest Caselaw 552 Chatt

Chattisgarh High Court

Lalit Kumar Sahsi vs Ajay Kushwaha on 16 March, 2026

                                                             1




                                                                              2026:CGHC:12442
                                                                                           NAFR

                                HIGH COURT OF CHHATTISGARH AT BILASPUR


                                                   MA No. 238 of 2025

                      1 - Lalit Kumar Sahsi S/o Shri Pratap Singh Sahsi Aged About 60 Years R/o
                      House No. 2-A, Road-9, Sector-9, Bhilai Nagar, Tahsil And Distt. Durg
                      Chhattisgarh.
RAHUL
JHA                   2 - Smt. Asha Devi Kori W/o Shri K.L. Kori Aged About 59 Years R/o Qtr. No.
                      B/8, Sector - 1, Shankar Nagar, Raipur, Tahsil And District - Raipur
Digitally signed by
RAHUL JHA
Date: 2026.03.16
17:55:44 +0530


                      Chhattisgarh.
                                                                                      Appellant(s)

                                                          Versus

                      1 - Ajay Kushwaha S/o Late P.S. Kushwaha Aged About 60 Years R/o D-508,
                      Talpuri, Bhilai, Tahsil And Distt. Durg Chhattisgarh.
                      2 - State Of Chhattisgarh Through Collector, Durg, Distt. Durg Chhattisgarh
                                                                                     Respondent(s)

(Cause-title taken from Case Information System) For Appellant(s) : Mr. H.B. Agrawal, Senior Advocate along with Ms. Swati Agrawal, Advocate

For Resp No. 2/State : Mr. Anand Gupta, Dy. GA

Hon'ble Shri Bibhu Datta Guru, J Judgment on Board

16/03/2026

1. By the present appeal under Order 43 Rule 1(u) of the Code of Civil

Procedure, 1908 (for brevity 'the CPC'), the appellants/defendants are

challenging the impugned judgment and decree dated 29/09/2025 passed

by the learned IX District Judge, Durg in Civil Appeal No. 98/2023

(Ajay Kushwaha v. Lalit Kumar Sahsi & Others), whereby the judgment

and decree dated 31/07/2023 passed by the learned IX Civil Judge Class-

II in Civil Suit No.38A/2013 (Ajay Kushwaha v. Lalit Kumar Sahsi &

Others) has been set-aside and the matter has been remanded to the trial

Court for fresh adjudication.

2. For the sake of convenience, the parties would be referred as per their

status before the learned trial Court.

3. (a) The plaintiff instituted a civil suit against the defendants seeking

declaration of title, possession, permanent injunction and compensation

in respect of the disputed land bearing Khasra No. 164/19 admeasuring

6600 sq. ft. (0.060 hectare) situated at Village Potiyakalan, Patwari

Halka No. 79, R.N.M. Durg-2, Tahsil and District Durg. It was pleaded

in the plaint that the plaintiff is the sole owner and in possession of the

said land, having purchased it through a registered sale deed dated

28/02/1983 from Dharmwari Chaudhary S/o Balbir Singh Chaudhary,

after which his name was duly recorded in the revenue records as owner

and possessor and has continued to be reflected in all relevant records. It

was further pleaded that earlier one Guruavatar Singh attempted to

encroach upon the suit land, whereupon the plaintiff filed Civil Suit No.

24-A/2009 before the Court of I Civil Judge Class-II, Durg, which was

decided on 29/01/2010 declaring the plaintiff as the owner of the suit

land. The plaintiff also got the land demarcated on three occasions,

namely on 08.11.1997, 03.11.2010 and 25.09.2012, and the demarcation

reports confirmed his possession over the suit property. However, in

January 2013, when the plaintiff inspected the land, he found that

defendant No. 1 was attempting to raise a boundary wall by dumping

boulders and claiming the land as his own. On obtaining a certified copy

of the sale deed relied upon by defendant No. 1, the plaintiff came to

know that defendant No. 1 had in fact purchased land bearing Khasra

No. 164/22 situated about one kilometer away from the main road,

whereas the suit land bearing Khasra No. 164/19 is adjacent to the main

road. Similarly, defendant No. 2, claiming his land to be Khasra No.

164/24, also attempted to interfere with and encroach upon the suit

property and even tried to sell it. The plaintiff lodged complaints before

Police Station Pulgaon, the Superintendent of Police, Durg and the

Tahsildar, Durg, but despite such complaints the defendants continued

their attempts to illegally occupy the suit land and raised construction

thereon during the pendency of the suit.

(b) According to the plaintiff, defendants No. 1 and 2 have illegally

encroached upon portions of the suit land as shown in the map annexed

with the plaint and raised construction thereon. Therefore, the plaintiff

prayed for a decree declaring him as the owner of the suit land, for

removal of the illegal constructions made by defendants No. 1 and 2 and

delivery of vacant possession, for permanent injunction restraining the

defendants from interfering with his peaceful possession, and for

damages at the rate of ₹1,000 per day from 27.06.2013 till delivery of

possession.

(c) Defendants No. 1 and 2 filed their written statement denying the

allegations of the plaintiff and prayed for dismissal of the suit with costs,

whereas during the pendency of the proceedings defendant No. 3 was

proceeded ex parte.

4. The learned Trial Court, after framing the issues and considering the

material available on record, observed that several opportunities were

granted to the plaintiff to lead evidence. However, despite such

opportunities, the plaintiff failed to adduce any evidence in support of

his case. Consequently, the Trial Court closed the opportunity of the

plaintiff to lead evidence and, in the absence of evidence to substantiate

the pleadings, dismissed the suit of the plaintiff.

5. Aggrieved by the said judgment and decree, the plaintiff preferred a First

Appeal before the Appellate Court. The learned First Appellate Court,

upon consideration of the matter, allowed the appeal, set aside the

judgment and decree passed by the Trial Court and remanded the suit to

the Trial Court for fresh adjudication in accordance with law. The

Appellate Court held that the Trial Court had earlier allowed the

application filed by the plaintiff under Order 26 Rule 9 read with Section

151 of the Code of Civil Procedure and had directed that a demarcation

report be obtained through a Commissioner. In such circumstances,

merely because the plaintiff did not lead evidence on a particular date,

the Trial Court ought not to have closed the opportunity of the plaintiff's

evidence without first obtaining the Commissioner's report. It was

further observed that the case had repeatedly been fixed for plaintiff's

evidence as well as for the demarcation report and, therefore, closing the

plaintiff's evidence in the absence of the Commissioner's report

amounted to virtually reviewing the earlier order by which the

Commissioner had been directed to be appointed. Accordingly, the

judgment and decree of the Trial Court were set aside and the matter was

remanded for fresh consideration.

6. Learned counsel appearing for the appellants/defendants submits that the

learned First Appellate Court has erred in remanding the matter to the

Trial Court. It is contended that the Trial Court had granted several

opportunities to the plaintiff to lead evidence in support of his case,

however, despite such repeated opportunities, the plaintiff failed to

adduce any evidence. It is further submitted that in view of the persistent

failure on the part of the plaintiff to produce evidence, the Trial Court

rightly closed the opportunity of the plaintiff's evidence and dismissed

the suit. Learned counsel submits that the plaintiff cannot be permitted to

take advantage of his own default and seek a fresh opportunity through

remand of the suit. Therefore, according to the learned counsel, the First

Appellate Court was not justified in setting aside the well-reasoned

judgment and decree passed by the Trial Court and remanding the matter

for fresh adjudication.

7. I have heard learned counsel for the appellant and perused the material

available on record.

8. From perusal of the record, it is evident that the Trial Court had earlier

allowed the application filed by the plaintiff under Order 26 Rule 9 read

with Section 151 of the Code of Civil Procedure and had directed that a

Commissioner be appointed for demarcation of the suit land and that the

demarcation report be obtained. The record further reveals that thereafter

the case was repeatedly fixed for the plaintiff's evidence as well as for

the Commissioner's report.

9. In a suit relating to declaration of title, possession and encroachment

over immovable property, the demarcation of the land assumes

considerable importance for proper adjudication of the dispute. Once the

Trial Court had itself considered it necessary to obtain a demarcation

report through a Commissioner, the said report constituted a relevant

piece of evidence for effective adjudication of the controversy involved

in the suit.

10. In the present case, although it is true that several opportunities were

granted to the plaintiff to lead evidence, the fact remains that the

demarcation report, which had earlier been directed to be obtained by the

Trial Court, was not brought on record. In such circumstances, closing

the plaintiff's evidence and deciding the suit without obtaining the

Commissioner's report had the effect of virtually rendering the earlier

order directing demarcation otiose.

11. The learned First Appellate Court, while considering these aspects, found

that the dispute between the parties essentially relates to identification

and encroachment over the suit land and that proper adjudication of the

matter would require consideration of the demarcation report. The

Appellate Court, therefore, set aside the judgment and decree passed by

the Trial Court and remanded the matter for fresh adjudication.

12. Having considered the matter in its entirety, this Court finds that the

learned First Appellate Court has exercised its jurisdiction in accordance

with law. The order of remand has been passed to ensure proper

adjudication of the dispute between the parties after obtaining the

demarcation report and affording opportunity to the parties to lead

evidence. The said course cannot be said to be either illegal or perverse

warranting interference in an appeal under Order 43 Rule 1(u) of the

Code of Civil Procedure.

13. Consequently, the impugned judgment and decree passed by the learned

First Appellate Court remanding the matter to the Trial Court for fresh

adjudication does not call for interference by this Court.

14. Accordingly, the appeal is dismissed at the admission stage itself. The

Trial Court shall proceed with the matter in accordance with law and

decide the suit expeditiously.

Sd/-

(Bibhu Datta Guru) Judge

Rahul/Gowri