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2023 Supreme(Online)(CHH) 2631
AFR HIGH COURT OF CHHATTISGARH, BILASPUR First Appeal No. 109 of 2011 Judgment reserved on 13.04.2023 Judgment pronounced on 13.07.2023 Dr. Tarun Kumar Naik S/o Dr. Radhe Shyam Naik, aged about 40 years, R/o Village Baghera, Tehsil and District Durg, CG ---- Appellant /plaintiff Versus
1. Prafull Maheshwari son of Dr. Late Dungarmal Maheshwari, aged about
32 years, R/o Gudiyari, Tehsil and District, Raipur, CG
2. Kamlesh Kumar Deshmukh son of late Badri Prasad Deshmukh, aged about 52 years, 3. Dilip Kumar Deshmukh, S/o late Badri Prasad Deshmukh, aged about 37 years, 4. Basant Kumar Deshmukh, late Badri Prasad Deshmukh, aged about 30 years, 5. Smt. Khorbahrin Bai Wd/o late Badri Prasad Deshmukh, aged about 76 years, Nos. 2 to 5 are R/o village Janjgiri, Tehsil and District Durg, CG
6. State of Chhattisgarh through Collector, Durg
7. Shri Mahavir Jain son of Shri Manak Chand Jain, aged about 21 years, R/o 09 Vivekanand Colony, Tehsil and District Raipur, CG
8. Rikhabchand Jain son of Shri Gulab Chand Jain, aged about 49 years, R/o Infront of Gulab Deshbandhu Presh, Raipur, Tehsil and District, Raipur, CG
9. Shri Rajesh Kumar Jain S/o Shri Hukum Chand Jain, aged about 36 years, R/o C-20 Sector – 1 Devendra Nagar, Raipur, Tehsil and District Raipur, CG
10.Shri Shyam Sundar Chokhwani son of Shri Shankar Lal Chokhwani, aged about 67 years, R/o A-20, Minocha Colony, Bilaspur, Tehsil and District Bilaspur, CG
11.Shri Sachin K. Agrawal, S/o Shri Kailash Chand Agrawal, aged about 22 years, R/o 306, Samta Colony, Raipur, Tehsil and District Raipur, CG ---- Respondents/Defendants Name of Defendant No.6 Ram Kumar Deshmukh is not mentioned, since dead For Appellant - Shri B.P. Sharma and Shri Nikhil Parikh Advocates For R-1, 7 to 9 and 11 - Shri Anurag Dayal Shrivastava, Advocate For R-6/State - Smt. Meena Shashtri, Additional AG For R-2 to 5 and 10 - None D.B.: Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice Sachin Singh Rajput
CAV Judgment
Per Sachin Singh Rajput, J This appeal is directed against the judgment dated 25.03.2011 passed by 8th Additional District Judge (FTC) Durg, CG (for short the “ADJ”) in Civil Suit No. 7-A/2007 by which suit filed by the plaintiff for declaration of title and permanent injunction has been dismissed.
2. Facts of the case in brief as pleaded in the plaint are that the suit property comprised in piece of Khasra No. 168/1 (part) area 26.23 acre, Khasra No. 169/3 (part) area 0.45 acre total area 26.68 acre situated at Village Baghera, P.H. No. 72, R.I.C. Durg-2, Tehsil and District Durg happens to be a part of large chunk of the ancestral property of the plaintiff which was partitioned as per mutual agreement between the family members on 06.10.1983. On partition, the disputed land fell in the share of defendant Nos. 2 to 6 but they never came in its possession nor any agricultural activities have been carried out by them, and thus the plaintiff is in peaceful possession from 06.10.1983 and he using the said land even now. Since the plaintiff is in possession of the suit land from 06.10.1983, he claims to have perfected his title by way of adverse possession in the year 1995. Thereafter, it is stated that on 07.08.2005 some persons tried to take forcible possession of the said land but after protest made by the plaintiff they went back. One of them told plaintiff that the defendant no.1 has purchased the said land. Subsequently on 16.10.2005 defendant No.1 along with certain anti social elements again came to take forcible possession of the suit land but they did not succeed in their aim. This act of defendant No.1 made the plaintiff to lodge a report in the police station but the police did not take any action on the said report on the ground that it was a civil dispute. Thus on the ground of adverse possession the plaintiff became the title holder of the land in dispute and for that he prayed for declaration of title and permanent injunction.
3. Defendant No.1 filed his written statement stating that the land in dispute was never in the possession of the plaintiff, and on the contrary it was always in possession of defendant Nos. 2 to 6 from whom he purchased the same by way of registered sale deed on 03.02.2005 and subsequently it was recorded in his name in the revenue records, and thus the plaintiff cannot claim to be in adverse possession of the suit land. He further states that the plaintiff did not even pay the proper court fee.
4. Defendant Nos. 2 to 6 also filed their written statement stating that the suit land was never in possession of the plaintiff and that he did not even pay the proper court fee while filing the suit, nor did he file any revenue record showing his possession. According to them, defendant No.1 purchased the said land by a registered sale deed and thus is in possession thereof.
5. Learned Court below framed the following issues:
(I) Whether the plaintiff is in possession of the disputed land?
(ii) Whether the plaintiff is in continuous possession of the disputed land since 06.10.1983?
(iii) Whether on the basis of adverse possession the plaintiff has acquired the title of the disputed land?
(iv) Whether defendants No. 2 and 6 have lost their title on account of adverse possession of the plaintiff?
(v) Whether the sale deed of the disputed land dated 9.2.2005 is illegal and null and void as regards the plaintiff?
(vi) Whether the possession of the plaintiff over the disputed land has been interfered with by defendant No.1?
(vii) Whether the plaintiff is entitled to get a relief of permanent injunction against the defendants?
(viii) Whether the plaintiff has properly valued the suit and paid the proper court fee?
(ix) Relief and costs?
6. After hearing the parties and appreciating the evidence on record, learned Court has decided the above issues against the plaintiff and dismissed the suit of the plaintiff by the judgment impugned. Hence this appeal.
7. Shri B.P. Sharma, learned counsel for the appellant
