The court upheld that previous inspections negate the necessity for further evidence collection regarding encroachment claims.

Order on Board

18 . 07.2025

1. The petitioner has challenged the order dated 09.06.2025 passed by the Fourth Additional Judge, Raigarh, to the First Civil Judge, Senior Division, Raigarh, in Civil Suit No. 75-A/2022, whereby the application moved by the petitioner/plaintiff under Order 26 Rule 9 of CPC has been rejected.

2. The petitioner/plaintiff filed a suit for a declaration to the effect that the order passed by the Tahsildar, Pussore, District Raigarh, dated 06.04.2016, be declared null and void and not binding on the plaintiff/petitioner. The further case of the plaintiff is that the land bearing survey No. 11 admeasuring 1.534 hectares situated at village Karichapar, Patwari Circle No. 21, Tahsil Pussore, District Raigarh is recorded as Abadi land in the revenue records. The plaintiff and defendant No. 2 are residing in their houses after the construction of their houses. Defendant No. 2 moved an application before the Collector for the removal of encroachment, and an inspection was conducted by the revenue authorities, and thereafter, a report was submitted, wherein it was found that the petitioner had encroached on some part of the land. The petitioner appeared before the authority and filed a reply. The Tahsildar passed the order for removal of encroachment vide order dated 06.04.2016 under the provisions of Section 248 of the C.G. Land Revenue Code , 1959, and the same has been affirmed by the Sub-Divisional Officer (Revenue), Raigarh and Commissioner, Bilaspur Division, and thereafter, the Civil Suit has been filed.

3. The defendants filed their written statement and denied the plaint averments.

4. The petitioner moved an application under Order 26 Rule 9 of CPC for the appointment of a Commissioner. It was prayed that a Local Commissioner may be appointed to ascertain the area of encroachment by the petitioner. Respondent No. 2 filed a reply to the said application, and finally, it was rejected by the learned trial Court.

5. Learned counsel for the petitioner would submit that the learned trial Court was not justified in rejecting the application on the ground that the petitioner had moved the application to collect evidence through the Court. He would further submit that the petitioner has not encroached on any part of the government land, and he has been in possession for decades. He would also submit that to resolve the controversy and for the identification of the land, the demarcation is necessary, and therefore, the learned trial Court ought to have allowed the application.

6. On the other hand, learned counsel appearing for the State would oppose.

7. I have heard learned counsel for the parties and perused the documents placed on the record.

8. Perusal of the plaint would show that it has been filed claiming relief to declare the order passed by the Tahsildar dated 06.04.2016 as null and void. A complaint was made against the petitioner with regard to encroachment over the government land, and the matter was duly inquired into by the Tahsildar, and thereafter, the order was passed. The order passed by the Tahsildar was challenged before the appellate revenue authorities, and orders were passed against the petitioner. The petitioner has not challenged orders passed by the Sub Divisional Officer (Revenue)

and the Commissioner in the civil suit.

9. As earlier, the inspection was conducted by the revenue authorities and a report was also submitted; therefore, there was no occasion to appoint a Local Commissioner for re-demarcation of the property; thus, in my opinion, the learned Trial Court rightly rejected the application.

10. Consequently, this petition fails and is hereby dismissed. No cost(s).