[Cites 3, Cited by 0]
Chattisgarh High Court
Ghanshyam Prasad Dewangan vs Naresh on 19 March, 2026
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 323 of 2019
Judgment Reserved on 12/3/2026
Judgment Delivered on_19 /3/2026
Ghanshyam Prasad Dewangan S/o Dukaluram Dewangan, Aged About
57 Years R/o Balauda, Tahsil Balauda, District- Janjgir-Champa,
Chhattisgarh.................(Plaintiffs)
... Appellant
versus
1 - Naresh S/o Kishan Lal Dewangan, Aged About 48 Years
2 - Chandrabhan S/o Sukalu Dewangan, Aged About 58 Years
3 - Krishna Murari S/o Arjunlal Dewangan, Aged About 57 Years
4 - Bodhiram, S/o Mathura Dewangan, Aged About 66 Years
5 - Lagan S/o Narayan Dewangan, Aged About 48 Years
6 - Manharan S/o Jaitram Dewangan, Aged About 58 Years
SHYNA
AJAY
Digitally signed by
SHYNA AJAY
DN: cn=SHYNA AJAY,
o=PERSONAL,
st=Chhattisgarh, c=IN
2
All are R/o Village Balauda, Tahsil Balauda, District- Janjgir-Champa,
Chhattisgarh
7 - President Nagar Panchayat Balauda, Smt. Jamuna Devi Ratre,
Tahsil Balouda, District- Janjgir-Champa, Chhattisgarh
8 - Chief Executive Officer, Nagar Panchayat Balauda, Pravesh Chand
Kashyap, Tahsil Balauda, District- Janjgir-Champa, Chhattisgarh
9 - State Of Chhattisgarh Through Collector, Janjgir, District- Janjgir-
Champa, Chhattisgarh...........(Defendants)
... Respondent(s)
For Appellant : Ms. Ankita Goswami, Advocate on behalf of
Mr. P.K. Patel, Advocate
For Respondent(s) : Mr. Dharmesh Shrivastava, Dy. AG
No one appears on behalf of the other
defendants despite service of notice.
DB: Hon'ble Mr. Justice Sanjay S. Agrawal &
Hon'ble Mr. Justice Amitendra Kishore Prasad
C A V JUDGMENT
Amitendra Kishore Prasad, J.
1. This appeal under Section 96 of the CPC is filed by the plaintiff
aggrieved by the judgment and decree dated 28.6.2019 passed
by the Third Additional District Judge, District Janjgir-Champa
(CG) in Civil Suit No.29-A/2017, whereby the plaintiff's suit for
permanent injunction was dismissed by the trial Court.
2. Brief facts of the case, as projected by the appellant/plaintiff, are
that the appellant/plaintiff instituted a civil suit for permanent
injunction in respect of Abadi land bearing Khasra No. 3484/1,
area 8.615 hectare. Within this area, the suit property specifically
comprises a portion measuring 23 feet in length and 18.9 in width,
situated at Village Baloda, Ward No.4, District Janjgir-Champa
(CG). The disputed land is the ancestral property of the plaintiff,
son of Dulaku Ram Dewangan. The plaintiff is the cultivator and
in possession of the said land, which was originally acquired by
his father from one Gajraj, son of Devnath Dewangan through a
registered sale-deed dated 11.12.1993 (Ex.P/1). Since that date,
the plaintiff and his predecessor have remained in continuous and
peaceful possession of the suit property. In the year 2006,
defendants 1 to 6 attempted to take possession of the land under
the pretext of constructing a stage for cultural programme through
the Nagar Panchayat, Balauda. The plaintiff objected to this
interference and submitted a written complaint to the President of
the concerned Nagar Panchayat. It is further contended that
defendants 1 to 6 by use of force and with the assistance of the
concerned authorities, are attempting to construct a stage for
cultural program upon the disputed land. Since suit property is in
lawful title and possession of the plaintiff, he was constrained to
file the suit for permanent injunction to restrain the defendants
from such illegal interference.
3. Defendants 1 to 6 filed their written statement, categorically
denying the material allegations made in the plaint. It was averred
that the plaintiff possesses no right, title or interest in the suit
property, and therefore, is not entitled to the relief of permanent
injunction. Unless and until it is established that the defendants
are attempting to encroach upon the plaintiff's land, a decree for
permanent injunction cannot be passed. Since the appellant/
plaintiff has failed to prove that he is the title holder or in lawful
possession of the land in question, the defendants cannot be
restrained by way of permanent injunction and accordingly, the
suit is liable to be dismissed. Defendants 7 & 8 also filed their
separate written statement denying the plaint averments. They
pleaded that the plaintiff has neither title to nor possession of the
suit property. It was further averred that the defendants have
constructed a stage upon Abadi land and as such, the plaintiff is
not entitled to permanent injunction without proving both title and
settled possession. In fact, the suit itself is wholly misconceived
and filed on vexatious grounds and is, therefore, liable to be
dismissed. The trial Court, upon appreciation of the evidence on
record, has dismissed the plaintiff's suit by holding that the plaintiff
failed to prove his title and possession over the suit property.
4. Mr. Ankita Goswami, Advocate appearing on behalf of Mr. PK
Patel, Counsel for the appellant/plaintiff submits that the plaintiff is
having clear title over the suit property, which is evident from the
registered sale-deed (Ex.P/1) executed in favour of the plaintiff's
predecessor way back on 11.12.1933. She submits that based on
this registered document, the plaintiff has remained in continuous
and peaceful possession of the property. The defendants started
interfering with the said possession when the plaintiff commenced
construction over the suit land. After the objections raised by the
private defendants, respondents 7 & 8 issued a show cause
notice directing the plaintiff to remove the building materials
collected on-site. Furthermore, the plaintiff made complaints
(Ex.P/5 & P/6 respectively) before the concerned Collector and
raised objections during construction of a stage. She submits that
the Khasra Map (Ex.P/7) and Nazri Naksha (Ex.P/8) annexed with
the plaint demonstrate the plaintiff's ownership and possession,
as well as the construction raised by the plaintiff, which has been
disputed by the defendants. Consequently, in order to restrain the
defendants, the plaintiff has rightly instituted the suit. She further
submits that while the trial Court considered the subject sale-
deed, it failed to consider the plaintiff's long-standing ancestral
possession since 1933. In doing so, the trial Court travelled to an
area by focusing on issues irrelevant to the question of
possession. She further submits that the measurement of the suit
land, along with its specific boundaries, has been clearly detailed
in the pleadings and supporting documents. Therefore, the trial
Court's finding that the identification of the suit land is disputed,
purportedly based on a perusal of the sale-deed and documentary
evidence, is contradictory to the evidence on record. The trial
Court failed to properly appreciate both the documentary and oral
evidence. She lastly submits that the impugned judgment is
palpably erroneous and the plaintiff's suit deserves to be decreed
in his favour.
5. We have learned counsel for the appellant and have also perused
the record with utmost circumspection.
6. From a bare perusal of the record, it appears that although the
appellant/plaintiff is claiming relief of permanent injunction based
on title, the sale-deed (Ex.P/1) does not contain a clear
description of property. The measurements of the property are
described as below :
7. The sale-deed (Ex.P/1) does not specify the Khasra number or
provide any identification of the land. Therefore, despite the
existence of a registered sale-deed in favour of the plaintiff's
predecessor, the plaintiff cannot claim a clear and unequivocal
right based on such a deficient document. Though the plaintiff has
sought to rely upon the Khasra Map (Ex.P/7) but this document
does not ascertain the actual location of the suit land. Moreover,
the Nazri Naksha (Spot Map) (Ex.P/8) is not sufficient to
determine either the physical identity of the suit property or the
factum of the plaintiff's possession. There is no evidence on
record such as the demarcation report or testimony from a
Revenue Department official, to substantiate the claim of actual
possession or to identify the suit property. Since the suit property
cannot be identified based on the evidence produced by the
plaintiff, it is impossible to acertain valid possession of the land or
verify the alleged encroachment by the defendants. In the
absence of a clearly defined boundary, no finding of unlawful
possession can be sustained. Since there is lack of identification
of the disputed area, the trial Court has rightly held, based on both
documentary and oral evidence, that the relief sought by the
plaintiff to restrain the defendants from interfering with his
possession cannot be granted. Even otherwise, from the perusal
of the record, it appears that the defendants have already
constructed a permanent structure (stage) on the suit land.
Consequently, in the absence of a prayer for the recovery of
possession, a suit for permanent injunction is not maintainable.
8. Although the plaintiff filed an application under Order 26 Rule 9 of
the CPC for appointment of a Court Commissioner to identify the
the disputed and verify possession, the trial Court has dismissed
the same holding that the application was filed at a highly belated
stage after the closure of the plaintiff's evidence, which shows an
improper attempt to collect the evidence to fill gaps in the case. In
our view, the trial Court has rightly rejected the said application.
Furthermore, it appears that the order dismissing the application
under Order 26 Rule 9 of the CPC was never challenged before a
higher forum and therefore, it has attained finality..
9. In a judgment rendered in the matter of Haryana Waqf Board Vs.
Shanti Sarup and others reported in (2008) 8 SCC 671, it was
held by the Hon'ble Supreme Court that if necessary, the trial
Court should allow the application filed under Order 26 Rule 9 of
the CPC for ascertaining the real position of the land in dispute.
The aforesaid judgment reads as follows :
1. Leave granted.
2. This is an appeal filed by the Punjab Waqf Board
who was the plaintiff in a suit for declaration and
injunction. The High Court in the second appeal had
summarily dismissed the appeal on the ground that
the second appeal was concluded by the concurrent
findings of fact arrived at by the courts below. From
the judgment itself, it would appear that the Board
had failed to prove that the respondents have
encroached upon any land belonging to the appellant
Board. In view of the aforesaid position, the second
appeal was summarily dismissed by the High Court.
In our view, the High Court ought not to have
dismissed the suit summarily merely on the ground
that the second appeal was concluded by the
concurrent findings of fact.
3. The dispute that was raised by the parties before
the court was whether the respondent had
encroached upon any land belonging to the appellant
Board. Therefore, it cannot be in dispute that the
dispute was in respect of the encroachment of the
suit land.
4. Admittedly, in this case, an application was filed
under Order 26 Rule 9 of the Code of Civil Procedure
which was rejected by the trial court but in view of the
fact that it was a case of demarcation of the disputed
land, it was appropriate for the court to direct the
investigation by appointing a Local Commissioner
under Order 26 Rule 9 CPC.
5. The appellate court found that the trial court did
not take into consideration the pleadings of the
parties when there was no specific denial on the part
of the respondents regarding the allegations of
unauthorised possession in respect of the suit land
by them as per Para 3 of the plaint. But the only
controversy between the parties was regarding
demarcation of the suit land because the land of the
respondents was adjacent to the suit land and the
application for demarcation filed before the trial court
was wrongly rejected.
6. It is also not in dispute that even before the
appellate court, the appellant Board had filed an
application for appointment of a Local Commissioner
for demarcation of the suit land. In our view, this
aspect of the matter was not at all gone into by the
High Court while dismissing the second appeal
summarily. The High Court ought to have considered
whether in view of the nature of dispute and in the
facts of the present case, whether the Local
Commissioner should be appointed for the purpose
of demarcation in respect of the suit land.
7. For the reasons aforesaid, we are of the view that
the High Court ought to have considered this aspect
of the matter and then decided the second appeal on
merits. Accordingly, we set aside the judgment and
decree passed in the second appeal and the second
appeal is restored to its original file.
8. The High Court is requested to decide the second
appeal in the light of the observations made
hereinabove within six months from the date of
supply of a copy of this order to it. The appeal is thus
allowed. There will be no order as to costs.
10. Reverting to the facts of the present case, in light of the principles
laid down in the aforementioned case, it is evident that since no
Khasra Number is mentioned in the sale-deed and the document
fails to disclose the identity of the land, there is no legal ground to
appoint a Court Commissioner to ascertain its identity. Moreover,
a Commissioner cannot be tasked with identifying a property,
where the title deed fails to define or describe the said land. In
the evidence also, the identification and encroachment is lacking.
11. In view of the aforesaid discussion, the concerned trial Court has
rightly dismissed the suit of the plaintiff, which does not call for
any interference under Section 96 of the CPC.
12. The appeal being devoid of merits, is liable to be and is hereby
dismissed.
Sd/- Sd/-
(Sanjay S. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Shyna Ajay
