RAM PRASANNA SHARMA, J.

1. This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against judgment/decree dated 24.06.2005 passed by 2nd Additional District Judge, Baloda-Bazar (C.G.) in Civil Suit No. 3-A/2004, wherein the said court decreed the suit filed by the respondents for declaring title, permanent injunction and in alternate possession of the suit land bearing Survey No. 2625/03 area admeasuring 0.101 Hectare situated at Village- Bhatgaon, TahsilBhatgaon, District- Raipur (C.G.).

2. Learned counsel for the respondent/ plaintiff submits that the suit land is a part of Survey No. 2625/01. Ancestral of respondent namely Shankar Lal entered into an agreement with owner of the property namely Bindeshwari Devi and it is settled that land will be sold @ Rs. 120/- per dismil for which Rs. 100/- was paid as advance money. After four years of the agreement, Rs. 500/- was paid regarding contract and after 2-3 days of the payment of Rs. 500/-, Rs. 2400/- was again paid to Bindeshwari Devi by Shankar Lal. Receipt regarding payment of Rs. 2400/- is not given by Bindeshwari Devi. Sale deed was not executed by Bindeshwari Devi, but possession of the land in question was delivered to Shankar Lal. As per version of respondent, Shankar Lal was in possession after constructing house in the said land and granted electric connection in the said house in the year, 1963 and after death of Shankar Lal, respondent/plaintiff were in possession of the said land and acquired title by adverse possession. As per version of the appellants/defendant, the house is constructed in Survey No. 2625/02 area admeasuring 0.142 acre and it is not constructed in the suit land bearing Survey No. 2625/03. Survey No. 2625/03 is open land which is fenced by the appellants and they are in possession of the land in question.

3. Learned counsel for the respondent/ plaintiff submits that as per report of Tahsildar dated 11th March, 2004 (Ex.D/4), house is constructed in Survey No. 2625/02 and it is not constructed in Survey No. 2625/03, but the trial court decreed the suit against the factual matrix and legal aspect of the matter. When there is a dispute that whether the house is constructed in Survey No. 2625/02 or 2625/03, the trial court ought to have directed for demarcation of land as per Section 129 of the Madhya Pradesh/Chattisgarh Land Revenue Code, 1959 (for shot “the Code, 1959”), but without demarcating the land, the trial court passed the decree which is not liable to be sustained. Possession of the respondent is not adverse possession because as per the pleading itself, they came into possession by way of agreement with Bindeshwari Devi, therefore, their possession is not adverse, but the same is permissive possession. As the respondents were never willing to execute the contract, therefore, they cannot retain their possession and in alternate, they were never in possession of the said land, therefore, finding of the trial court is liable to be reversed.

4. The first question for consideration before this Court is whether the respondents/plaintiff were in adverse possession in the suit land since 1959 as per their pleadings. The respondent adduced evidence of Harbanshi Lal Dewangan (PW-1), Phoolbai (PW-2) and Tikarama (PW-3) and filed documents Ex. P/1 to P/26. Harbanshilal Dewangan (PW-1) is son of Shankar Lal Dewangan. As per version of this witness, Shankar Lal Dewangan entered into an agreement with Smt. Bindeshwari Devi who was owner of the property. Advance money of Rs. 100/- and Rs. 510/- was given towards agreement. Though, Rs. 2400/- was also paid to Bindeshwari Devi, but no receipt was given by her in this regard. Thereafter, possession was delivered to them and they are in possession of the land in question since 1959.

5. In rebuttal, the appellants/defendant side adduced evidence of Roop Singh Chouhan (DW-1), Naresh Kesharwani (DW-2), Ramji Lal Kesharwani (DW-3), Dhoomudas (DW-4). As per version of Roop Singh