JUDGMENT

Ram Prasanna Sharma, J. - This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against judgment/ decree dated 17.05.2003 passed by Second Additional District Judge, Baloda-Bazar (C.G.) in Civil Suit No. 56A/2001, wherein the said court decreed the suit filed by the respondent/plaintiff for declaration of title over the property bearing Survey No. 251/1, area admeasuring 1.795 Hectare situated at Village- Avrethi, Tahsil- Bhatapara, District- Raipur and for delivery of possession of the land area admeasuring 3245 sq.mtr. from the appellant/ defendant.

2. As per the respondent/ plaintiff, the land in question i.e. Survey No. 251/1 area 1.795 Hectare was given to it by Municipal Corporation as per proposal dated 15.01.1972. Accordingly, the respondent became owner of the said land and the land is recorded in its ownership. The appellant/ defendant encroached the land in the month of December, 1981 to the tune of 3245 sq.mtr. which was found correct in demarcation performed by Tahsildar- Bhatapara. A notice was given to the appellant on 08.05.1987 for vacating the land. As per the appellant, he is in possession of the land since 30-32 years and acquired title on the basis of adverse possession, but the trial court recorded finding contrary to the factual matrix and legal aspect of the matter.

3. Learned counsel for the appellants submits as under:-

(i) The appellant is claiming adverse possession since 1952 which is established from statement of Phattechand (DW-1), Hanuman Prasad Sharma (DW-2) & Sitaram (DW-3), therefore, the finding arrived at by the trial court is not liable to be sustained.

(ii) The trial court erred in holding that the appellant had encroached the land in the year 1981, therefore, the finding arrived at by the trial court is liable to be set aside

4. On the other hand, learned counsel for the respondent submits as under:-

(i) A notice was issued to the appellants for removal of encroachment on 14.12.1981 as per Ex.P/5 and he replied on 09.01.1982 as per Ex.P/6 that he is willing to exchange his land bearing Survey No. 228 with the land of the respondent bearing Survey No. 251/1.

(ii) Again, a notice was issued to the appellant on 09.11.1982 as per Ex. P/7, but he did not vacate the land that is why the suit was filed on 28.04.1988.

(iii) The appellant was not in possession of the land in question since 1952, therefore, he has not acquired title of the property on the basis of adverse possession.

(iv) The finding arrived at by the trial court is based on proper marshaling of evidence and the same is not liable to be interfered with invoking jurisdiction of the appeal

5. I have heard learned counsel for the parties and perused the record in which judgment and decree has been passed.

6. The respondent/ plaintiff adduced evidence of Ashok Kumar Kumbhaj, Secretary, Krishi Upaj Mandi, Bhatapara (PW-1), Ghanaram Sahu (PW-2), Mahettarram Verma (PW-3) & Sosai Ram, Assistant Sub-Inspector, Krishi Upaj Mandi, Bhatapara (PW-4) and produced document Ex. P/1 to P/9. As against this, the appellant/ defendant adduced evidence of Phattechand (DW-1), Hanuman Prasad Sharma (DW-2) & Sitaram (DW-3). From document Ex. P/1 which is record of right, it is established that the respondent- Krishi Upaj Mandi is owner of the property in question. The appellant- Phattechand himself (PW1) deposed before the trial court (Para 1) that he is in possession of the land bearing Survey No. 251/1 area 3235 sq.mtr. He further deposed before the trial court that he has filed an application before the respondent- Krishi Upaj Mandi regarding exchange of his land bearing Survey No. 228 with land of the respondent bearing Survey No. 251/1. Looking to the record of right and further looking to the admission of the appellant, it is clear that the property in question is property of respondent- Krishi Upaj Mandi and the appellant is in possession of 3235 sq.mtr. of the land in question.

7. The only issue for co