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2020 DIGILAW 208 (CHH)

Mangtu Ram Sahu v. Yogendra Kumar Dheewar

2020-02-18

SANJAY K.AGRAWAL

body2020
JUDGMENT 1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant is as under: ''Whether the First Appellate Court is justified in reversing the judgment and decree of trial Court and granting decree for possession of the suit land by holding demarcation reportExhibit P/3 is a valid demarcation by recording a finding which is perverse to the record ? [For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court]. 2. Respondent No.1/plaintiff filed a suit for declaration of title, permanent injunction and for recovery of possession on 20.7.2004 stating interalia that he was granted patta of the land bearing Khasra No.212/10 area 0.05 acre by the competent authority by order dated 11.10.1982 and it was renumbered as Khasra No.481, in which defendant No.1 has encroached, which was got demarcated by the plaintiff on 11.7.2003 (Ex.P3) and as such, he is entitled for declaration of title and possession from defendant No.1. 3. Defendant No.1 by filing written statement has denied the averments made in the plaint and made prayer for dismissal of the suit. 4. The trial Court upon evaluation and after appreciation of oral and documentary evidence available on record, by its judgment and decree dated 11.4.2007, held that the plaintiff is titleholder of the suit land bearing Khasra No.212/10 area 0.05 acre (renumbered as Khasra NO.481), but further held that the plaintiff has failed to prove encroachment by defendant No.1 on his land as he has failed to identify his land and as such, he is not entitled for recovery of possession. On appeal being preferred by the plaintiff under Section 96 of the CPC , the first appellate Court by the impugned judgment and decree allowed the appeal and setaside the judgment and decree of the trial Court holding that demarcation report has become final as it was not challenged by defendant No.1 by way of revision petition, as such, the plaintiff is entitled for decree of possession. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellant/defendant, in which substantial question of law has been formulated by this Court, which has been setout in the opening paragraph of this judgment. 5. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellant/defendant, in which substantial question of law has been formulated by this Court, which has been setout in the opening paragraph of this judgment. 5. Mr.Malay Jain, learned counsel for the appellant/defendant, would submit that the first appellate Court is absolutely unjustified in granting decree for possession of the plaintiff as the revenue inspector who has conducted demarcation (Ex.P3) was not examined and therefore, demarcation report is not proved, as such, the judgment and decree of the first appellate Court deserves to be set aside. 6. On the other hand, Mr.B.P.Sharma, learned counsel for respondent No.1/plaintiff, would support the impugned judgment and submit that demarcation report has become final and as such, decree has rightly been granted in favour of the plaintiff by the first appellate Court. 7. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. 7. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The plaintiff has proved encroachment by defendant No.1 on the basis of demarcation report (Ex.P3) which states as under: izfr] Jheku vfr- rglhynkj jk;iqj fo"k;%& izfrosnu izLrqr djus ckcr~A lanHkZ%& vkidk Kkiu dzekad 141@ck- vfr rg@03 jk;iqj fnukad 13@6@03 egkns;] fuosnu gS fd vkosnd ;ksxsUnz dqekj /khoj firk nkuhjke /khoj ds }kjk vkosnu izLrqr dj xzke dqdjk igu 62 fLFkr Hkwfe [kljk ua 212@10 dk VqdM+k 0-05 ,dM+ Hkwfe dks 'kklu }kjk LoxhZ; firk Jh nkuhjke dks iV~Vs ij nsuk crk;k x;k gS] rFkk mDr Hkwfe dks uki tks dj dCtk o vf/kdkj fnyk;s tkus dk fuosnu fd;k x;k gSA vkosnd }kjk vkosnu i= ds lkFk layXu izfrfyfi ds vuqlkj U;k;ky; Jh ds0ih0[kk.Ms uk;c rglhynkj jk;iqj ds }kjk xzke dqdjk Ik g ua 62 fLFkr Hkwfe vkcknh [k-u- 212@10 dk VqdM+k 0-05 ,dM+ 66 x 33 oxZ QqV dks jk-ek-d- v&66@82&83 esa ikfjr vkns'k fnukad 22@3@82 ds vuqlkj HkwfeLokeh vf/kdkj izkIr fd;k x;k gSA xzke dqdkjk Ikgu & 62 esa cUnkscLr dh dk;Zokgh iw.kZ gksdj uD'kk vfHkys[k izpyu esa gSA jhuEcjhax lwph ds vuqlkj vkosfnr Hkwfe [k-ua- 210@10 dk Hkkx] dk orZeku cUnkcLr vfHkys[k ds vuqlkj [k-u- 481 jdck 2-82 gsDVj vkcknh Hkwfe ds :i esa ntZ gSA vkosnd ds firk Lo0 nkuhjke dks vkcafVr Hkwfe vkcknh gksus ls uD'ks es cVkad ugha gSA vkSj u gh [kljk ikWp'kkyk esa izfr"Vh vafdr gSA vkosnd ds }kjk izLrqr uD'kk izfrfyfi ,oa orZeku uD'ks ds LFky esa] vkcafVr Hkwfe dks flekafdr fd;k x;kA vkosnd ds firk LoxhZ; nkuhjke dks vkcafVr Hkwfe ij Jh eaxrw firk lq[kjke lkgw] edku fuekZ.k dj dkfct gSA vr% mijksDr fLFkfr esa vkosnd dks dCtk fnyk;k tkuk laHko ugha gSaA vr% vkns'kkuqlkj vfxzr dk;Zokgh gsrq izfronsu lknj izLrqr gSA lgh@& 9. A bare perusal of the aforesaid demarcation report would show that simply opinion has been given by the revenue inspector that Mantu S/o. Sukhram Sahu, who is defendant No.1 in suit, is in possession over the suit land and no particulars of the boundary has been mentioned along with demarcation report. A bare perusal of the aforesaid demarcation report would show that simply opinion has been given by the revenue inspector that Mantu S/o. Sukhram Sahu, who is defendant No.1 in suit, is in possession over the suit land and no particulars of the boundary has been mentioned along with demarcation report. The trial Court upon examination of demarcation report (Ex.P3) has clearly held that demarcation made is not in accordance with law and permanent boundary marks have been identified before making the demarcation and it has not been enclosed by the concerned revenue officer. 10. Section 124 of the Chhattisgarh Land Revenue Code, 1959 (hereinafter called as ''Code'') provides for construction of boundary marks of villages and survey numbers or plot numbers which reads as under: ''124. Construction of boundary marks of villages and survey numbers or plot numbers .( 1) Boundaries of all villages shall be fixed and demarcated by permanent boundary marks. (2) The State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall also be fixed and demarcated by boundary marks. (3) Such boundary marks shall, subject to the provisions hereinafter contained, be of such specification and shall be constructed and maintained in such manner as may be prescribed. (4) Where the rules prescribed boundary marks of a specification different from that prevailing in any village, the new specification shall not be enforced in such village except upon application to a Tahsildar made by not less than half the number of holders of land in the village. When such application is made, the Tahsildar shall have new boundary marks constructed throughout the village and shall distribute the cost thereof proportionately among the holders of land in the village in accordance with rules made under this Code. The share of each holder shall be recoverable as an arrear of land revenue. (5) Every holder of land shall be responsible for the maintenance and repair of the permanent boundary and survey marks erected thereon.'' 11. Subsection (2) of Section 124 of the Code provides that the State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall be fixed and demarcated by boundary marks. Subsection (2) of Section 124 of the Code provides that the State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall be fixed and demarcated by boundary marks. Subsection (1) of Section 124 of the Code provides that boundaries of all villages shall be fixed and demarcated by permanent boundary marks. The aforesaid provisions are specific which provide two types of boundaries, one of village and another of all survey number of plot numbers in the village. The State has also framed rules regarding boundaries and boundary marks, survey marks. Rule 2 of the aforesaid Rules provides boundaries of all villages and boundaries of survey numbers or plot numbers in villages notified under subsection (2) of section 124 shall be demarcated by: (a). an unploughed strip 1.50 metre in width; or (b). a dhura .50 metre high, 1.50 metre wide at the base and 1.00 metre at the top; or (c). a strong fence or wall, or (d). boundary stones. 12. Rule 3 provides that near each corner of a survey number or plot number shall be erected two mounds or teelas pointing along the field boundaries. The Rule 9 provides that between the 1st November and the 15th December each year, the patel and patwari shall jointly inspect every boundary or survey mark in each survey number or plot number in the village and shall prepare a statement in Form A of defective or missing marks, and shall give a written notice in form B to the holders concerned. Rule 13 provides how construction and maintenance of boundary marks in the village shall be regulated. 13. Aforesaid provisions specifically provide two types of boundary marks, one of village and another of each survey number in the village. The local Commissioner performing work of demarcation of the suit land ought to have firstly ascertain whether there are permanent marks as per section 124 of the Code or not and in absence of such boundary marks, he is required to ascertain the correct boundaries of nearby survey numbers and after ascertaining the boundaries of such lands, three sides of disputed property, he has to ascertain the correct location of the disputed land and only thereafter, he has to submit his report before the Court. 14. 14. The Madhya Pradesh High Court in the matter of Jagdish Prasad v. State of M.P. and Anr., 2009 (2) MPLJ 429 laid down the mode and manner in which demarcation has to be made by the Commissioner appointed by the Court keeping in view the provisions contained in Section 124 of the Code. 15. In the matter of Laxman Singh v. Jagannath, 2000(1) M.P.H.T. 384 it has been held by the M.P. High Court that in order to prove the demarcation report, examination of the officer who has demarcated the land is necessary and rejected the plaint at the second appeal stage. It was observed as under: ''12. The plaintiff alone has entered the witness box. In his deposition, he has not specified the specific portion encroached upon by the defendant. He has submitted a document Ex. P1 which is a certified copy of demarcation of the lands at village BamuliyaUda sent by the Office of Revenue Inspector to the NaibTahsildar. Ex. P2 is a certified copy of Panchanama. Original documents and records were not called from the Revenue Courts. The Revenue Officers, who measured the land were also examined. The plaintiff in his deposition has stated that he does not remember the survey number of suit land and has stated that it must be recorded in the map. In the plaint, sufficient specifications of the land encroached is not mentioned and no map is furnished.'' 16. Reverting to the facts of the present case in the light of principle of law laid down by the Madhya Pradesh High Court in the abovestated judgments (supra), it is quite vivid that demarcation has been made by the concerned revenue officer vide Ex.P3 without identifying the permanent boundary marks and even the officer who has conducted demarcation has not been examined and only by the plaintiff, this demarcation report has marked and exhibited and it is well settled law that mere marking or exhibiting will not dispensed with the proof of document by the plaintiff. 17. In view of that, finding recorded by the first appellate Court that since demarcation report has not been challenged by defendant No.1 in revision, therefore, it has become final is perverse finding and as such, the judgment and decree of the first appellate Court is setaside and that of the trial Court is hereby restored. 17. In view of that, finding recorded by the first appellate Court that since demarcation report has not been challenged by defendant No.1 in revision, therefore, it has become final is perverse finding and as such, the judgment and decree of the first appellate Court is setaside and that of the trial Court is hereby restored. The substantial question of law is answered in favour of the defendant and against the plaintiff. 18. The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s). 19. Decree be drawnup accordingly.