SAROJ BAI Vs. RAMDAS LAHRE

JUDGEMENT

(1.) By way of the instant appeal, the appellant has challenged the judgment and decree dated 28.4.12 passed by the Additional District Judge, Mungeli in Civil Appeal No.7-A/2011 whereby the 1st appellate court has confirmed and affirmed the judgment and decree dated 6.11.2009 by the Civil Judge, Class-1, Mungeli in Civil Suit No.53-A/2006.

(2.) The facts leading to the filing of the instant Second Appeal are that plaintiffs had instituted a suit claiming declaration of title, injunction in the mandatory form seeking removal of the encroachment which is alleged to have been created by the defendant in the suit property bearing Khasra No.462/1 measuring 8.17 acres at village Dharampura of which, it is alleged that the defendants, had encroached upon some portion of the said land and made certain construction in the said suit land as an encroachment and therefore, had sought for the removal of same. It is a case where during the course of the proceedings before the trial court, vide its order dated 10.3.2008, in the light of the provisions of Order 26 Rule 9 CPC, the trial court ordered for a special inspection of the disputed portion of land and in the course, vide order dated 10.3.08, the court below had specifically directed that Tehsildar, Mungeli is appointed as Commissioner and it was further directed that the Tehsildar himself shall go and conduct the inspection of the disputed property and submit a report to the court on the basis of which, the further proceedings would take place. However, subsequently, it was learnt that the Tehsildar in spite of personally executing the order of the court as a Commissioner, as per the order dated 10.3.08, in turn, had appointed a Committee consisting of 3 Revenue Inspectors namely Nasir Khan, Mulchand Dubey and Ram Bhajan Singh and directed the said Committee to get the measurement done and to submit the report to him and the 3 Inspectors, as per the order of the Tehsildar, conducted the measurement and submitted a report to the Tehsildar, who in turn, made a Commissioner's report and submitted the same before the Tribunal. On the basis of the said report of the Commissioner, the trial court proceeded further and decided the suit in favour of the plaintiffs holding that the defendants have in fact made certain encroachments on the suit property and accordingly, allowing the suit, judgment and decree was passed on 6.11.2009.

(3.) This judgment dated 6.11.2009 was put to challenge by way of an appeal i.e. which was registered as Civil Appeal No.7-A/2011 before the Additional District Juddge, Mungeli.