RADHEY SHYAM Vs. SHANKAR LAL GUPTA

JUDGEMENT

(1.) This second appeal preferred by the defendant under Section 100 of the CPC has been admitted by formulating the following substantial question of law for determination which states as under: "Whether on the facts and in the circumstances of the case, the 1st appellate Court was justified in reversing the judgment and decree of the trial Court and holding that the plaintiff is the owner of the disputed property and the appellant herein had encroached upon the disputed land of the plaintiff?"

(2.) The plaintiff filed suit for possession based on title that he is owner of Khasra No.77/1, area 1.27 acres, situate at Village Belgahna, Tahsil Kota, District Bilaspur of which he is the title holder and out of which 2 decimals has been illegally encroached by defendant No.1 and despite having requested to vacate has not vacated leading to filing of suit for possession in which defendant No.1 filed his written statement and stated that defendant No.1 is title holder of the suit land, as he has purchased that land by registered deed dated 22-6-1976. The trial Court dismissed the suit that the plaintiff has failed to establish that defendant No.1 has encroached upon the suit land. The first appellate Court on appeal being preferred by the plaintiff firstly, partly remanded to prove the documents Exs.P-5 to P-8 and called for the report of the trial Court and thereafter allowed the appeal holding that defendant No.1 has encroached upon 2 decimals of land owned by the plaintiff against which this second appeal has been preferred in which the substantial question of law has been formulated and which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Gautam Khetrapal, learned counsel appearing for the appellant herein / defendant No.1, would raise a singular contention that Exs.P5 to P-8 demarcation report has not been proved by calling the revenue officer and therefore the first appellate Court is absolutely unjustified in holding that defendant No.1 has encroached upon the suit land.