In the case where it is evident that the land has been identified by boundaries by the Commissioner in a demarcation held in presence of the parties then there is no reason for upholding the dispute regarding the ownership. A single-judge bench comprising of Justice Sanjay K. Agrawal adjudicating in the matter of Vinay Kumar v. State of Chhatisgarh (SECOND APPEAL No.251 of 2007) dealt with an issue whether to grant relief to the appellant or not,
In the present case, the second appeal is preferred by Defendant seeking “Whether the lower appellate Court was justified in reversing the well-reasoned judgment and decree dated 28122006 passed by the 1st Civil Judge Class, Janjgir Champa in Civil Suit No.211A/2003 and granting relief of permanent injunction against the appellant/defendant?”
The plaintiff filed a suit that he is the title and possession holder of the suit land was he purchased from original holder Nathan Singh by registered sale deed dated 6.9.1961 in which his name is also mutated and ultimately after the change, khasra number became 3820/10 and through which he approaches his remaining land. It is in the case of the plaintiff that defendant No.1 started creating a nuisance and started construction on the land for which suit was filed seeking permanent injunction restraining defendant No.1 from interfering with his possession.
The defendant in his written statement denied the averments of the plaintiff and stated that he has purchased the suit land bearing Khasra No.3820/9 area 0.06 decimal from Nathan Singh by registered sale deed dated 15.5.1980 and he owns his land and making construction on his own land. Therefore, the plaintiff is not entitled to a permanent injunction. During the pendency of the suit, the trial court appointed Revenue Commissioner to ascertain whether the suit land is part of Khasra No.3820/10 or it is part of Khasra No.3820/9, Revenue Commissioner to ascertain whether the suit land is part of Khasra No.3820/10 or it is part of Khasra No.3820/9.
The trial court after looking into the evidence passed a judgment and dismissed the suit by the plaintiff. The plaintiff preferred the first appeal and granted decree in favor of the plaintiff against which the defendant filed the present (second) appeal.
Defendant submitted that the first appellate Court is absolutely unjustified in granting decree for permanent injunction in favor of the plaintiff ignoring the Commissioner’s report in which the Commissioner has clearly indicated that it is the defendant who has the said land and there is no objection to report of the Commissioner, therefore, the first appellate Court ought to have accepted the report of the Commissioner. He would further submit that it is only a suit for permanent injunction in which title could not have been looked into by the first appellate Court.
The Respondent submitted that the impugned judgment and decree of the first appellate Court and submit that written statement is not verified in accordance with Order 6 Rule 4 of the CPC and defendantVinay Kumar has even not entered into the witness box to examine himself, therefore, the defendant did not have opportunity to crossexamine the plaintiff, as such, adverse inference against the defendant has to be drawn. It was also submitted that the evidence of the Commissioner and other evidence on record, inevitable conclusion would be the plaintiff is in possession of the suit land and decree for a permanent injunction has rightly been granted in favor of the plaintiff, as such, the second appeal deserves to be dismissed.
The court after hearing all the submissions of both the parties stated that The suit land was earlier held by Nathan Singh, he sold the suit land bearing Khasra No.3820 area 0.10 decimal by registered sale deed dated 6.9.1961to the plaintiff showing no boundaries of land sold to the plaintiff and thereafter it was renumbered as Khasra No.3820/10, whereas he also sold the land bearing Khasra No.3820/9 area 0.06 decimal to defendant No.1Vinay Kumar showing boundaries in the sale deed. When defendant No.1 started raising construction on his land, the plaintiff disputed his raising of construction by saying that the suit land belongs to him and defendant No.1 is not competent to raise construction, which led to the filing of suit for permanent injunction simpliciter stating interalia that the suit land in which construction is being made is owned by him and therefore, defendant No.1 be restrained from making construction on the suit land.
Also, it was stated,” though the Commissioner was subjected to lengthy crossexamination by the plaintiff, nothing could be extracted to hold that the plaintiff’s land is also available in the spot, whereas the Commissioner has clearly held that it is the defendant’s land i.e. Khasra No.3820/9 area 0.06 acre is available on the spot, in which he is making construction, as such, from perusal of the Commissioner’s report, it is quite vivid that in the spot, defendant No.1 was making construction on his land and he is in possession of the said land, as such, defendant No.1 was making construction on his own land being in possession of the suit land and the plaintiff is not entitled to a decree of permanent injunction.”