ARUN KUMAR DEWANGAN Vs. NAND KUMAR DEWANGAN

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff herein are as under:­

(2.) Father of the plaintiff and defendants No.1 and 2 were brothers. It is the case of the plaintiff that in partition between his father and defendants No.1 and 2, the suit property bearing Khasra No.2205/1D Sheet No.46, Plot No.5, area 1659 sq.ft. fell in share of his father, which came in his share on partition between his brothers, out of which, in some part of the suit land, defendants No.1 and 2 have encroached by making construction. The plaintiff applied for demarcation under Section 129 of the Chhattisgarh Land Revenue Code, 1959 (hereinafter called as 'the Code') before the Tahsildar, Dhamtari and ultimately, the Tahsildar directed for demarcation and it was actually done on 16.08.2004 (Exs.P­3 to P­5) in presence of both the parties and the demarcation was confirmed by the Tahsildar, Dhamtari on 25.8.2004 vide Ex.P­2, in which it has been recorded that defendants No.1 and 2 have encroached upon the plaintiff's land i.e. 8.3x18 total 148 sq.ft. The order of demarcation passed by the Tahsidar was challenged before the Collector, Dhamtari at the instance of the defendants and the Collector, Dhamtari vide order dated 18.10.2005 (Ex.P­7) affirmed the order of the Tahsildar, which was further affirmed by the Board of Revenue on 9.2.2007 vide Ex.P­8. It is the case of the plaintiff that since defendants No.1 and 2 have encroached upon the plaintiff's land, he is entitled for declaration for title, permanent injunction and possession of the suit land shown in Schedule 'A', 'B', 'C' and 'D' of the plaint by demolishing the construction made upon the suit land.

(3.) Resisting the suit, defendants No.1 and 2 filed their written statement and denied the averments made in the plaint stating inter­alia that the suit property never fell in share of the plaintiff and the plaintiff has failed to prove encroachment of the defendants over the suit land and demarcation report is totally unauthorized and therefore, the plaintiff is not entitled for declaration of title, permanent injunction and possession.