Identification of property boundaries is crucial in recovery of possession cases; ambiguous descriptions can invalidate claims under property law.

JUDGMENT :

Anubha Rawat Choudhary, J.

Heard the learned counsel appearing on behalf of the appellant.

2. This appeal has been filed against the judgement dated 23.07.2018 (decree singed on 27.07.2018) passed by learned District Judge – I, Dhanbad in Civil Appeal No.32 of 2018, whereby the learned 1^st appellate court partly allowed the appeal and directed the defendant to handover the vacant possession of the encroached portion measuring an area of 615 sq. ft. of the land towards eastern side of the house of the plaintiff, failing which the plaintiff would be entitled to recover khas possession through the process of law.

3. The trial court judgement dated 02.02.2018 (decree signed on 12.02.2018) was passed by learned Civil Judge (Junior Division) I Dhanbad, in Title Suit No.99 of 2008, whereby the suit was decreed.

4. The defendant is the appellant before this Court.

5. The learned counsel for the appellant, while assailing the impugned judgements, submitted that neither the deed nor the Amin’s report had the proper boundary, which is the basis to calculate the area of encroachment and further no specific boundary has been mentioned in the judgement passed by the learned 1^st appellate court with respect to which there is an order of recovery 615 sq. ft. The learned counsel submitted that in view of such discrepancy, the decree is not executable. She further submitted that a substantial question of law be framed and decided. She has referred to the judgment passed by Hon’ble Orissa High Court reported in 1981 SCC OnLine Ori 62 ( Rama Subudhi and Others Vs. Bhagirathi and others ). However, the said judgement arose out of an execution proceeding. Referring to paragraph 9 of the said judgment, she contended that when the description of the property is vague, a suit cannot be decreed. The learned counsel has also submitted that there is no specific date of encroachment by the defendant in the records.

6. After hearing the learned counsel for the appellant, this Court finds that the suit was filed seeking a decree of declaration of title with respect of the land of Schedule A as purchased vide registered sale deed no.4841 dated 19.04.1982 and also seeking confirmation of possession with a further relief that if the plaintiff is dispossessed during the suit, then for a decree of recovery of khas possession of the suit property.

7. The case of the plaintiff is that the plaintiff had purchased four kathas of land pertaining to plot nos.103 and 106 under khata no.105 vide sale deed no.4841 dated 19.04.1982 from the rightful owner namely Joytishwar Ghosh and came in possession but the defendant has been creating disturbance and interfering with the possession of the Schedule A land by tying his cows and buffaloes. A proceeding under Section 144 Cr.P.C. was initiated vide M.P. Case No.372/03 and as per the plaintiff, the decision in the said proceedings was incorrect.

8. It was further case of the plaintiff that after purchasing the suit land, he had constructed a boundary wall in the year 1982 and as a northern wall of the plaintiff’s land got damaged, the plaintiff wanted to repair the damaged wall for the purposes of safety and privacy but the defendant without any justification started creating trouble. In order to cause demarcation, the plaintiff filed an application before the Circle Officer, Dhanbad for measurement of the land which was measured by the Circle Officer in Measurement Case No.23/2000-01 vide report dated 07.01.2002 showing demarcation of the purchased land of the plaintiff. The plaintiff had the required documents with respect to the suit