Single Bench IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR ( C.G.)

<u>Misc. Appeal No. //</u>옷 of 2014

APPELLANT/ Plaintiff Pradeep Kumar Gupta son of Shri Laxminarayan Gupta, aged about 48 years, resident of Baniyapara, Ratanpur, Police Station-Ratanpur, Tahsil-Kota, District-Bilaspur (C.G.)

VERSUS

RESPONDENTS/ Defendants

(A SPU

:1. Ramswarup Kashyap son of Rajaram Kashyap, aged about 60 years,

2. Bharatlal Kashyap son of Shri Rajaram Kashyap, aged about 55 years,

Shatrughan Kasyap son of Shri Rajaram Kashyap, aged about 45 years,

Sharad Kashyap son of Shri Rajaram Kashyap, aged about 50 years,

Respondents no. 1 to 4 are resident of Bhedimuda, Ratanpur, Police Station-Ratanpur, Tahsil-Kota, District-Bilaspur (C.G.)

5. State of Chhattisgarh, through the Collector, Collectorate Office, Bilaspur (C.G.)

MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1 (r) OF CODE OF CIVIL PROCEDURE, 1908

HIGH COURT OF CHHATTISGARH AT BILASPUR

<u>M.A. No. 112 of 2014</u>

<u>APPELLANT</u>

Pradeep Kumar Gupta

VERSUS

RESPONDENTS

Ramswarup Kashyap and others

<u>SB: Hon'ble Shri Goutam Bhaduri, J.</u>

Present:

Mr. Goutam Khetrapal, Advocate for the appellant. Mr. S.P. Sahu, Advocate for respondent No.1 to 4.

<u>ORDER</u> (16.04.2015)

Challenge in this appeal is to the order dated 15.10.2014, passed by the Second Additional District Judge, Bilaspur, in Civil Suit No. 348-A/2014, whereby the application filed under Order 39 Rule 1 and 2 read with Section 151 of C.P.C., by the plaintiff has been dismissed.

It was a case of the plaintiff that the plaintiff is the owner and is in possession of the suit land bearing Kh.No.3642/2Ka, admeasuring 97 decimal, situated at village Ratanpur, P.C. No.37, R.I. Circle-Ratanpur, Tahsil-Kota, District Bilaspur. It was stated that the subject land was purchased by one Shayma Bai, who was the wife of Kanhaiya Lal Gupta, who was brother of Krishna Kumar Gupta, the grand father of the plaintiff. It was further stated that after the death of Kanhaiya Lal Gupta with the consent of Shyama Bai, the land was recorded in the name of the plaintiff and the plaintiff is in peaceful possession of the suit land from last 29 years. It was further stated that in South of the suit land, the respondents No.1 to 4 tried to encroach upon land admeasuring 420 sq.ft. land. It was further

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stated that the respondent No.1 to 4 are trying to encroach upon the main entrance of the land of the plaintiff/appellant despite the fact that they did not have any right, they have excavated the suit property. It was further stated that demarcation was done on 28.05.2014 and after demarcation, marker and pole were implanted, which the defendant took out and disturbed the possession. Therefore, the suit was filed for declaration and permanent injunction.

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The respondents denied the plaint allegation and stated that the defendants are the owner of land Kh.No.6398 and the disputed land is adjacent to it, wherein the plaintiff is claiming the property to be of his own and is trying to take over the land. It was further stated that the suit has been wrongly filed in order to take over the land from the defendants. It was stated that in the subject land, both the parties were claiming their right and while the demarcation was carried out no notice were served and in alternate the plaintiff is trying to construct a road over the land of the defendant and has encroached upon such land.

• 4. In the civil suit, an application was filed under Order 39 Rule 1 and 2 of C.P.C. making a prayer that till the adjudication of the suit, the defendants be restrained to disturb the possession of the plaintiff, which has been dismissed by the learned Trial Court. Hence this appeal.
• 5. Learned counsel for the appellant would submit that the demarcation report exists in his favour and the suit itself is filed simplicitor for

declaration and permanent injunction and if the defendants are allowed to raise any construction over the land,then in such case, the entire purpose offiling ofthe suitwould be defeated.

Page3

» &.

^•NC

6. Per contra learned counsel for the respondents opposed the argument and would submit that over the subject land, plaintiff is not in possession and therefore, the learned Trial Court had rightly dismissed the the application of the plaintiff.

^

7. ^I have hearfil docuf ni Bell i|:ies and perused the

• 8. perusal of the >land ^jttglMitN-facie it appears tf bearing Kh.No.3642/2 y^^8i-|ff in the name of plaintiff and Kh.No.6398 is recordelSI?i^®^Srieof defendants. The plaintiff predominantly has state^^g^^jdefendant has encroached upon the land bearing K^ |b^^|l|t-(J(|i belonged to the plaintiff. Therefore, on primary yiggggGQij,^ the records would go to show that both the parties are claiming their right over certain part of the land. The plaintiff has placed on record the demarcation report and primarily has alleged that on such land, the defendants are trying to encroach upon.
• 9. The learned Trial Court whileexamining the demarcation report has come to a finding that for both the plaintiff and the defendants, different approach roads are available, therefore, it can not be stated that thedefendants have encroached upon the land ofthe plaintiff. In the considered opinion of this Court at this stage without any evidence, the finding can not be conclusively drawn that who has

encroached upon the disputed land and it belongs to whom. If the dispute was not there and the roads were available to each other, there would have been no necessity to file the suit. Both of the parties have claimed right over the disputed land which can be adjudicated after entire evidence is adduced. At this stage, the opinion can not be formed conclusively. Therefore, in view of the existing documents available on record the appeal is allowed and it is directed that till the civil suit is decided on merits, the respective parties shall maintain status-quo in respect of the suit property.

• 10. The learned Trial Court is requested to decide the suit within further period of one year from the receipt of copy of this order.
• 11. With such observation, the appeal is disposed off. The record of the Trial Court be sent back forthwith.

सत्यमव जय.,

Sd/-Goutam Bhaduri Judge