D. UMA MAHESHWAR RAO vs RAMPRASAD BHAKT

Page 1 of 21
(FA No.369/2018)

CGHC010194352018 2026:CGHC:45543
NAFR
Digitally
signed by
SISTA
SOMAYAJULU
Date:
2026.10.28
16:43:32
+0530
SISTA
SOMAYAJULU
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 369 of 2018
{Arising out of judgment and decree dated 9-5-2018 in Civil Suit
th
No.38A/2013 of the 5 Additional District Judge, Raipur}
Judgment reserved on: 23-9-2026
Judgment delivered on: 28-10-2026
Judgment (Full) uploaded on: 28-10-2026
D. Uma Maheshwar Rao, S/o Late D. Jagga Rao, aged about 47 years,
presently resident of Shivanand Nagar, Srinagar, Gudhiyari, (earlier
resident of Vijay Nagar, Bhanpuri) Raipur, Tehsil & District Raipur,
Chhattisgarh.
(Defendant)
... Appellant
versus
Ramprasad Bhakt, S/o Late Jagannath Bhakat, aged about 64 years, R/o
Shrinagar, Khamtarai, Raipur, Tehsil & District Raipur, Chhattisgarh.
(Plaintiff)
... Respondent
For Appellant : Mr. Manoj Paranjpe, Senior Advocate with Mr.
Sandeep Patel, Advocate.
For Respondent : Mr. Shalvik Tiwari, Advocate.
Single Bench: -
Hon'ble Smt. Sushma Sawant, J.
C.A.V. Judgment
1. Invoking the appellate jurisdiction of this Court under Section 96 of the
Code of Civil Procedure, 1908, the appellant herein/defendant has
preferred this appeal challenging the judgment & decree dated 9-5-2018

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(FA No.369/2018)
th
passed by the 5 Additional District Judge, Raipur in Civil Suit
No.38A/2013 , by which the learned Additional District Judge has
decreed the suit filed by the respondent herein/plaintiff, for declaration
of title, permanent injunction, vacant possession and damages.
2.
The aforesaid challenge has been made on the following factual
backdrop: -
(For the sake of convenience, parties hereinafter will be referred as
per their status shown and ranking given in the civil suit before the trial
Court.)
Factual Matrix
-: Case of the Plaintiff/Respondent before the trial Court :-
3. Case of the respondent/plaintiff Ram Prasad , in brief, is that he
purchased the diverted land bearing Khasra No.67/10 , admeasuring
about 1755 sq. ft. , situated at Village Gudhiyari , Patwari Halka
No. 107 , Tehsil and District Raipur (hereinafter referred to as ‘the suit
property’), from Shri Satyaprakash Jha and Shri Shivkaushal through a
registered sale deed dated 22-4-2004 (Ex.P-2C) , by taking a loan.
Thereafter, he got his name mutated in the revenue records. The said
vendors had previously purchased the suit property from Shri Mantram,
Shri Kashiram and Chamarin Bai through a registered sale deed
dated 24-1-2003 (Ex.P-5) .
4. It is the further case of the respondent/plaintiff Ram Prasad that,
after purchasing the suit property, he went to Kolkata with his family on
5-12-2008. Upon returning on 24-12-2008, he found that appellant/
defendant D. Uma Maheshwer Rao had raised columns and

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(FA No.369/2018)
constructed a house over the suit property, thereby encroaching upon
his land. Consequently, a dispute arose between the parties, compelling
the respondent/plaintiff Ram Prasad to initiate civil proceedings
against appellant/defendant D. Uma Maheshwer Rao .
5.
It is further stated that, initially, respondent/plaintiff Ram Prasad
instituted a civil suit in the year 2009 seeking the reliefs of declaration
and injunction. However, upon completion of the construction of the
house by the defendant, the plaintiff sought the additional relief of
vacant possession. As the valuation of the suit for the additional relief
exceeded the pecuniary jurisdiction of the Court, the earlier suit was
withdrawn with liberty to institute a fresh suit. Accordingly,
respondent/plaintiff Ram Prasad instituted the present suit on 12-
5-2010, seeking declaration of title, permanent injunction, vacant
possession of the suit property and damages against appellant/
defendant D. Uma Maheshwer Rao .
-:Written Statement of the Defendant/Appellant before the
trial Court:-
6. While denying the adverse averments made in the plaint, appellant/
defendant D. Uma Maheshwer Rao has stated in the written
statement that house has been constructed over Khasra No.67/15 , area
admeasuring 1584 sq.ft . and not over Khasra No.67/10. It has further
been stated that appellant/defendant D. Uma Maheshwer Rao
has purchased Khasra No.67/15 vide registered sale deed dated 23-8-
2006 (Ex.D-2C) from one Shri Pradeep Baran, who had earlier
purchased the same on 14-12-1989 (Ex.D-1) from Shri Mantram and

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(FA No.369/2018)
others. It has also been stated that the house was constructed after
lawfully obtaining due permission from the Municipal Corporation on
28-11-2008 vide Ex.D-4 and the area mentioned in the sanctioned
layout plan matches with the purchase area of the defendant.
-: Proceedings before the learned Trial Court :-
7. The Trial Court after appreciating oral and documentary evidence
available on record, framed following issues and answered the issues as
under:-
S.No. Questions for Consideration Finding
1. ? " "
क्यावादग्रस्तवादीकेस्वामित्ववआधिपत्यकाथा प्रमाणितहॉ
" "
प्रमाणितहॉ कण्डि का
30
केअनुसार।
2.

क्याप्रतिवादीनेउक्तभूमि मेंअनाधिकृतरुपसेमकानका
, ?
निर्माणकरलियाहै प्रभाव
" "
प्रमाणितनहीं
3.
, ,
क्यावादी प्रतिवादीसेहर्जानाप्राप्तकरनेकाअधिकारहै यदि
?
हॉतोकितना
4.
क्यावादीनेदावेकासमुचितमूल्यांकनकरउचितन्यायशुल्क
" "
प्रमाणितनहीं
?
चस्पाकियाहै
5. ?
सहायताएवंव्ययं वादीकादावास्वीकार

कियागया।निर्णय
33
कण्डि का केअनुसार
-:Details of evidence and documents available before the
Trial Court:-
Evidence led by the respondent/pl aintiff Ram Prasad:-
8. Before the Trial Court, Rameshwar Kumar Dhruw (PW-1),
Ramprasad Bhakt (PW-2), Rahul Bhakt (PW-3), Shivkumar
Kaushal (PW-4), Kriparam Sinha (PW-5) & Mantram Sahu
(PW-6) have been examined on behalf of the respondent/plaintiff. In
support of his oral testimony, appellant/plaintiff Ram Prasad has
exhibited 8 documents as Exs.P-1 to P-8 .

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(FA No.369/2018)
Evidence led by appellant/defendant D. Uma Maheshwer
Rao :-
9. Whereas B. Chandrashekhar Naidu (DW-1) & D. Uma
Maheshwar Rao (DW-2) have been examined on behalf of
appellant/defendant D. Uma Maheshwer Rao. Appellant/defendant D.
Uma Maheshwer Rao has exhibited four documents Exs.D-1 to D-4C .
-:Judgment of the trial Court:-
10. Upon completion of the trial, the learned Trial Court, vide judgment
and decree dated 9-5-2018 , decreed the suit in favour of
respondent/plaintiff Ram Prasad , declaring his title over the suit
property and granting the relief of vacant possession after demolition of
the defendant’s house, along with a decree of permanent injunction.
Aggrieved by the said judgment and decree, appellant/plaintiff D.
Uma Maheshwer Rao has preferred the present appeal on the
following grounds:-
(i) The impugned judgment and decree of the trial Court are
perverse and not sustainable under the law.
(ii) The impugned judgment and decree of the trial Court have failed
to appreciate the facts and law on record.
(iii) The trial Court ought to have seen the evidence given by the
erstwhile owner of Khasra No.67/10 who has clearly stated that on
14-12-1989, the property was sold to one Shri Pradeep Baran Saha by
Mantram, Kashiram and Chamarin Bai and thereafter, sold the
property to him through registered sale deed dated 24-1-2003 which
was executed by power of attorney (Shyamlal Sahu).
(iv) The trial Court has erred in holding the opinion of the Revenue
Inspector as a report and even the Revenue Inspector in his evidence

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(FA No.369/2018)
has stated that the opinion was given by comparing the map attached
to the sale deed.
(v) There is an apparent error on the face of the record, which needs
interference by this Court in exercise of its jurisdiction as the first
appellate court i.e. as court of facts and law both.
(vi) The trial Court has failed to appreciate the evidence in
accordance with the principles applicable in civil cases i.e.
preponderance of probabilities.
-:Proceedings before the Appellate Court:-
11. Both the parties were heard on this appeal. The evidence and
documents available in the record of the trial Court have been perused.
-:Questions to be considered in this Appeal:-
1. Whether the learned Trial Court was justified in holding that
the defendant/appellant had encroached upon the suit
property bearing Khasra No.67/10, admeasuring 1755 sq. ft.,
situated at Village Gudhiyari, Patwari Halka No.107, Tehsil and
District Raipur, by constructing a house thereon?
2. Whether the learned Trial Court was justified in decreeing
vacant possession of the suit property after demolition of the
house constructed by the defendant/appellant and in granting
the relief of permanent injunction in favour of the plaintiff/
respondent?
3. Whether the judgment and decree passed by the learned
Trial Court warrant interference by this Court in the present
appeal?

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(FA No.369/2018)
-:Argument of Appellant/Defendant D. Uma Maheshwer Rao:-
12.On behalf of the appellant/defendant, detailed written submissions
have been advanced on behalf of Mr. Manoj Paranjpe, learned Senior
Counsel, in consonance with the pleadings contained in the written
statement. The principal contention is that the evidence led by the
plaintiff was not sufficient for granting the decree of title and possession
and the demarcation report relied upon by the learned trial Court was
not lawful as the demarcation was not conducted lawfully. Learned
Senior Counsel relying upon the decision of the Supreme Court in the
matter of Union of India and others v. Vasavi Cooperative
1
Housing Society Limited and others has contended that the
plaintiff has to prove his own case and so far as the demarcation
procedure and the identity dispute of land and demarcation.
13.
Learned Senior Counsel further relied upon the decision of this Court in
2
the matter of Ashok Kumar Tiwari v. Mohit Kumar and others
and that of the Supreme Court in the matter of Ram Lal and others
3
v. Salig Ram and others as also upon the decision of the Madhya
Pradesh High Court in the matter of Ramlal v. State of Madhya
4
Pradesh through Collector and others . It is further contended
that the learned trial Court has erred in not appreciating the building
layout (Ex.D-4), which shows that the house of the defendant has been
constructed over 1,584 sq.ft. of land, which exactly matches with the
sale deed of the defendant. It is also contended that the learned trial
1 (2014) 2 SCC 269
2 2019 SCC OnLine Chh 129
3 (2020) 11 SCC 590
4 2024 SCC OnLine MP 2334

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(FA No.369/2018)
Court was not justified in recording a finding that since the sale deed of
the plaintiff was executed prior in time, there are chances that the
defendant’s seller has sold him the land showing the boundaries of the
plaintiff’s land.
14.In respect of subsequent sale deed, reliance has been placed upon the
decision of this Court in the matter of Leela Bihari Mishra v. Rahul
5
Sinha and others . Finally, learned Senior Counsel relying upon the
decision rendered by this Court in the matter of Rameshwar Prasad
6
Gupta and another v. Bhagwan Das (Died) through LR would
submit that handing over of the suit property after demolition of the
defendant’s house would not be just and proper. It is, therefore,
submitted that the impugned judgment and decree cannot be sustained.
-:Argument of Respondent/Plaintiff Ram Prasad:-
15. Per contra, Mr. Shalvik Tiwari, learned counsel appearing for the
respondent/plaintiff, while supporting the judgment and decree passed
by the learned Trial Court, submitted that the finding of the trial Court
on identity/location of the suit land is a finding of fact resting on a
correct and detailed appreciation of (i) the registered sale deeds of both
parties compared boundary-for-boundary; (ii) an independent,
contemporaneous inspection carried out by a Revenue Inspector at the
joint instance of both parties; and (iii) an admission by the
appellant/defendant himself in his own cross-examination. Such a
5 F.A.No.54/2023, decided on 13-10-2025
6 S.A.No.321/2002, decided on 11-12-2019

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(FA No.369/2018)
finding being neither perverse nor against the weight of the evidence,
calls for no interference by this Court in a first appeal.
16.It is further contended that the impugned judgment rests on a correct
and detailed appreciation of the entirety of the evidence: two internally
consistent registered sale deeds constituting the respondent’s chain of
title; an internally inconsistent, unexplained chain on the appellant’s
side; the report of the Revenue Inspector (Ex.P-7) and panchanama
(Ex.P-8) – obtained at the joint instance of both parties, grounded in a
rational and duly explained method, tested by full cross-examination,
and never challenged by the appellant until this appeal; and the
appellant’s own admission that his construction follows the site-map of
the respondent’s land.
17.He relied upon the decision of the Supreme Court in the matter of
7
Subhaga and others v. Shobha and others , the decisions
rendered by this Court in the matters of Shiekh Nasruddin v.
8
Sarveshwar Dayal Mishra and another & Ghanshyam Prasad
9
Dewangan v. Naresh and others and that of the M.P. High Court
in the matter of Murlidhar and another v. Board of Revenue,
10
M.P. and others to buttress his submission. It was, therefore,
submitted that the impugned judgment and decree call for no
interference in the present appeal.
7 (2006) 5 SCC 466
8 WP227 No.932 of 2025, decided on 20-3-2026
9 FA No.323 of 2019, decided on 19-3-2026
10 WP No.18150 of 2012, decided on 29-1-2013

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(FA No.369/2018)
-:Analysis of the Appellate Court:-
Points for determination No.(i) to (iii)
18.
All three questions are interconnected and, therefore, they are taken
up together for consideration.
19. From the arguments advanced by both parties, their pleadings and the
evidence adduced, the following undisputed facts emerge indirectly
from the record. The respondent/plaintiff, Ram Prasad Bhakt,
purchased land bearing Khasra No.67/10 admeasuring 1,755 sq. ft .
from Satyaprakash Jha and Shivkaushal Parghania by way of registered
sale deed dated 22-4-2004 (Ex.P-2) , the four boundaries of which are
as follows:-
Direction Boundary
North Land of Verma
South Road
East Land of Hanuman Trust
West Land of Sahu
20. Similarly, appellant/defendant D. Uma Maheshwer Rao also purchased
land bearing Khasra No.67/15 , admeasuring 1,584 sq. ft. from
Pradeep Baran Shah by way of sale deed dated 23-8-2006 (Ex.D.-
2) , the four boundaries of which are as follows:-
Direction Boundary
North Land of any person
South Road
East Shiv Temple
West Land of Sahu

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(FA No.369/2018)
21. It is also undisputed that the respective vendors of the respondent/
plaintiff and the appellant/defendant, namely, Satyaprakash Jha,
Shivkaushal Parghania and Pradeep Baran Shah, had purchased the
lands from their original owners, namely, Mantram, Kashiram and
Chamarin Sahu . It is further undisputed that, prior to the institution
of the present suit, appellant/defendant D. Uma Maheshwer Rao had
already constructed his house.
22. The only dispute in the present case is, whether the house of appellant/
defendant D. Uma Maheshwer Rao has been constructed over the land
purchased by respondent/plaintiff Ramprasd Bhakt vide sale deed
(Ex.P.2) ? The learned Trial Court, while answering this question in
favour of respondent/plaintiff Ramprasad Bhakt, passed the impugned
decree directing appellant/defendant D. Uma Maheshwer Rao to deliver
vacant possession of the suit land to the respondent/plaintiff.
23. A first appellate court exercises powers co-extensive with those of the
Trial Court in respect of the re-appreciation of evidence and
adjudication of questions of fact and law. In the matter of Shasidhar
v. Ashwini Uma Mathad, (2015) 11 SCC 269, the Supreme Court
has held that a first appeal under Section 96 read with Order XLI Rule
31 of the Code of Civil Procedure, 1908, is a valuable right, and the
entire case is ordinarily open for rehearing on both questions of fact and
law. The first appellate court is, therefore, required to independently
consider the pleadings, contentions and evidence on record and record
its own reasoned findings. Accordingly, it would be appropriate to

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examine the evidence available on record and determine whether the
aforesaid finding recorded by the learned Trial Court is sustainable in
law.
24.
Although respondent/plaintiff Ramprasad Bhakt has raised the
contention that appellant/defendant D. Uma Maheshwer Rao did not
examine his vendor, who could have disclosed which particular piece of
land had been sold to appellant/defendant D. Uma Maheshwer Rao,
and that an adverse inference should, therefore, be drawn against
appellant/defendant D. Uma Maheshwer Rao, it is pertinent to observe
that respondent/plaintiff Ramprasad Bhakt has approached the Court
seeking relief and, therefore, the burden lies upon him to establish his
own case. Any weakness in the case of the appellant/defendant, or the
fact that he has not examined a particular witness, cannot, by itself,
endure to the benefit of the respondent/plaintiff.
25. The same principle has been affirmed by the Supreme Court in Vasavi
Co-operative Housing Society Limited’s case (supra), wherein,
with reference to Sections 101 to 103 of the Indian Evidence Act,
1872, the Supreme Court reiterated that the plaintiff must establish his
own case by adducing sufficient evidence, and that any weakness in the
case set up by the defendant cannot, by itself, constitute a ground for
granting relief to the plaintiff.
26.
The settled principle governing the burden of proof is that, if neither
party adduces any evidence, the party upon whom the burden of proof
lies must fail. The present case also attracts the same principle. If

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respondent/plaintiff Ramprasad Bhakt fails to adduce evidence in
support of his case, he must fail, as the burden of proof rests upon him.
27. Therefore, respondent/plaintiff Ramprasad Bhakt is required to
establish that the house constructed by appellant/defendant D. Uma
Maheshwer Rao encroaches upon the land purchased by the
respondent/plaintiff under sale deed (Ex.P-2) . The failure of the
appellant/defendant to examine his vendor cannot, by itself, relieve the
respondent/plaintiff of this burden.
28. Although the respondent/plaintiff examined the bank employee
Ramesh Kumar Dhruw (PW-1) , himself as (PW-2) , his son Rahul
Bhakt (PW-3) , the vendor under Ex.P-2, namely, Shivkumar Kaushal
(PW-4) , and Mantram Sahu (PW-6) , {though wrongly mentioned as
P.W.-5)}. On the other hand, appellant/defendant D. Uma Maheshwer
Rao examined himself as (DW-2) and B. Chandrashekher Naidu (DW-
1) in relation to the bank loan.
29. The bank witnesses examined by both parties are largely formal in
nature. Similarly, the testimonies of the respondent/plaintiff and his
son, as well as that of the appellant/defendant, are confined to the fact
that they had purchased the respective lands under sale deeds (Exs.P-2
& D-2) and do not assist in determining the identity of the land over
which the appellant/defendant has constructed his house.
30.
Now, upon examining the testimony and cross-examination of the
respondent/plaintiff's vendor, Shivkumar Kaushal (PW-4) , and the
original vendor, Mantram Sahu (PW-6) , it emerges that the original

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vendor, Mantram Sahu (PW-6) , has merely stated that they owned
land bearing Khasra No.67/1-2, which they had sold to various persons
through their power-of-attorney holder, Shyamlal Sahu. He was unable
to state which particular piece of land had been sold to which purchaser.
Thus, his testimony does not establish the identity of the particular
parcel of land sold to the respondent/plaintiff or the appellant/
defendant.
31.On examining the testimony of the respondent/plaintiff's vendor,
Shivkumar Kaushal (PW-4) , it appears from paragraph 6 of his
cross-examination that he is a broker engaged in the business of
purchase and sale of land . He admitted that he had purchased the
land in question without conducting any survey and that no layout plan
had been approved. He further admitted, in paragraph 2 of his
cross-examination, that he had purchased the land merely by
placing reliance on Shyamlal Sahu, which indicates that he had
purchased the land without properly verifying its identity and
particulars. These admissions indicate that the vendors of the
respondent/plaintiff had purchased the land without proper inquiry or
verification and subsequently transferred it further, apparently for
profit. Therefore, the testimonies of these witnesses do not materially
assist the respondent/plaintiff in establishing the identity of the land
purchased by him under Ex.P-2 .
32.
The learned Trial Court has erred in arriving at its conclusion on the
basis of the boundaries mentioned in the sale deeds and the admission

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regarding construction over the land, while overlooking the aforesaid
material aspects of the case. In this regard, it is pertinent to note that
Shivkumar Kaushal (PW-4) , the previous vendor of respondent/
plaintiff Ramprasad Bhakt, also admitted in the last line of
paragraph 6 of his cross-examination that the land which he had
purchased from Shyamlal, i.e., Mantram Sahu, the original owner,
through his power-of-attorney holder, had already been purchased by
Pradeep Baran Shaha, the vendor of the appellant/defendant.
33. This admission is material, as it indicates that Pradeep Baran Shaha had
purchased the land prior to its subsequent purchase by Shivkumar
Kaushal (PW-4). If the land had already been sold to Pradeep Baran
Shaha, the question arises as to how the same land could subsequently
have been sold to Shivkumar Kaushal (PW-4) by or on behalf of the
original owner. Thus, the evidence on record indicates that the
respondent/plaintiff's previous vendors may have misrepresented the
facts concerning the land, while the respondent/plaintiff himself also
purchased the land without properly verifying its identity and title.
34. The learned Trial Court has overlooked all these aspects, as the material
on record indicates that appellant/defendant D. Uma Maheshwer Rao
purchased the land under Ex.D-2 from a vendor who had already
acquired title to the land. If the lands covered by Ex.P-2 and Ex.D-2 are
one and the same, the appellant/defendant would have a better title to
the disputed land, having purchased it from the prior title-holder. This

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material aspect has not been properly considered by the learned Trial
Court.
35. As regards the demarcation reports (Exs.P-7 & P-8) and the testimony
of the witness who conducted the demarcation, Kriparam Sinha
(PW-5) , it also emerges that the demarcation was carried out without
any identifiable fixed reference points, as such reference points were not
available. With regard to the admissibility and validity of the
demarcation proceedings, learned counsel for the appellant/defendant
has relied upon Ashok Kumar Tiwari (supra); Ram Lal v. Salig
Ram (supra) ; and Ramlal v. State of Madhya Pradesh (supra).
36. On the other hand, learned counsel for the respondent/plaintiff has
relied upon the decisions in Subhaga (supra); Shiekh Nasruddin
(supra); Ghanshyam Prasad Dewangan (supra); and Murlidhar
(supra).
37. The aforesaid decisions were rendered in the context of the facts
and circumstances of the respective cases. The general principle
emerging from the judicial precedents relied upon by the parties is that
demarcation may, in appropriate circumstances, be carried out even in
the absence of fixed reference points, provided that the applicable legal
requirements are duly satisfied. Therefore, the validity and evidentiary
value of the demarcation reports in the present case must be examined
in the light of the circumstances in which the demarcation was
conducted and the evidence adduced in support thereof.

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38. In the present case, it may be accepted that, in the absence of fixed
boundary markers, demarcation could have been carried out with
reference to other available identifiable points. However, upon
examination of Ex.P-6 , it emerges that the respondent/plaintiff
submitted an application for demarcation on 11-5-2009 before the
Tahsildar and the Tahsildar, on the same day, directed the Revenue
Inspector to carry out the demarcation. Thereafter, on 17-8-2009 , the
Revenue Inspector submitted the demarcation report (Ex.P-7) before
the Tahsildar, which was approved by the latter on 10-6-2010.
39. The respondent/plaintiff has contended that, as the appellant/
defendant did not challenge the demarcation report, the same attained
finality. This contention cannot be accepted for two reasons. Firstly ,
from the initial order sheet of the Tahsildar dated 11-5-2009 until the
final order sheet dated 10-6-2010 , no notice appears to have been
served upon appellant/defendant D. Uma Maheshwer Rao , and
his signatures are not found anywhere in the proceedings. Even at the
time of demarcation, only the sale deed was apparently called for from
him; no actual measurement was conducted at the spot to ascertain the
extent of the land occupied by the house or the extent of the vacant land.
A perusal of Ex.P-7 further indicates that the report was prepared by
treating the land identified by the respondent/plaintiff as the disputed
land and proceeding on that basis.
40.
Secondly, upon examining the boundaries mentioned in the sale
deeds, it is pertinent to note that, when Shivkumar Kaushal (PW-

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4) , the previous vendor of the respondent/plaintiff, along with his
associate, purchased the land under sale deed (Ex.P-5) , the four
boundaries were as follows:-
Direction Boundary
North Land belonging to other
South Road
East Temple
West Land of Sahu
41.However, when the said land was subsequently sold to the respondent/
plaintiff under sale deed (Ex.P-2) , the four boundaries were described
as follows:-
Direction Boundary
North Land of Verma
South Road
East Land of Hanuman Trust
West Land of Sahu
42. A perusal of the aforesaid boundaries also indicates that the land
purchased by the previous vendors was not the same land that was
subsequently sold by them, as the boundaries mentioned in the two sale
deeds do not correspond with each other. In the sale deed relating to
the land allegedly purchased by the previous vendors, a temple is
mentioned towards the eastern side , whereas, in the sale deed
executed in favour of the respondent/plaintiff, the eastern boundary
is described as the land of the Hanuman Trust , without any
reference to a temple. Had the temple itself been situated on the
eastern side, it would ordinarily have been described as a temple rather
than merely as the land of the Trust.

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43. As regards appellant/defendant D. Uma Maheshwer Rao, the difference
in the boundaries of the land purchased by him may be attributable to
the fact that he had purchased only a part of the land from his previous
vendor. Therefore, such a difference in the boundaries is
understandable and does not, by itself, carry any adverse significance.
44. In the present case, respondent/plaintiff Ramprasad Bhakt neither
undertook any demarcation nor got the land surveyed after its purchase,
instead, he purchased the land without proper inquiry from vendors
who themselves had not adequately verified the identity of the land
before purchasing it. It is also material that the respondent/plaintiff's
previous vendors had come to know that the land had already been sold
to another person, namely, Pradeep Baran Shaha, prior to their
purchase. Despite these circumstances, the respondent/plaintiff
proceeded with the transaction without properly verifying the identity
and title of the land.
45.
One of the significant aspects of the present case is that respondent/
plaintiff Ramprasad Bhakt has not made specific pleadings, as required
under Order VII Rule 7 of the Code of Civil Procedure, 1908, specifying
the extent of the land allegedly encroached upon by the appellant/
defendant. Further, the Commissioner, Kriparam Sinha (PW-5), has
also not carried out any measurement to determine the extent of the
alleged encroachment, which was necessary for proper adjudication of
the dispute. The learned Trial Court has overlooked all these material

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aspects, thereby committing a serious error. Consequently, its finding
directing delivery of possession cannot be sustained.
46. The respondent/plaintiff may have purchased the land under sale deed
(Ex.P-2) ; however, he has failed to establish that the appellant/
defendant has encroached upon that very land. Therefore, the learned
Trial Court has erred in granting relief of possession in favour of the
respondent/plaintiff. In terms of the judgment of this Court in Leela
Bihari Mishra (supra), the respondent/plaintiff may initiate
appropriate proceedings in respect of any fraud or misrepresentation
allegedly practised upon him in the transaction against the persons
responsible, in accordance with law. However, in the absence of proof
that the appellant/defendant is in possession of the land purchased by
him, the respondent/plaintiff is not entitled to a decree for recovery of
possession against the appellant/defendant.
-:Final Conclusion:-
47.
In view of the foregoing discussion and the findings recorded herein
above, this Court is of the considered opinion that the learned Trial
Court has erred in directing delivery of possession in favour of the
respondent/plaintiff, despite the failure of the respondent/plaintiff to
establish that the appellant/defendant had encroached upon the land
purchased by him under sale deed (Ex.P-2) . Consequently, the
impugned judgment and decree passed by the learned Trial Court
cannot be sustained and are liable to be set aside.

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48. Accordingly, the appeal is allowed. The impugned judgment and
decree dated 9-5-2018 passed in Civil Suit No.38A/2013,
Ramprasad Bhakt v. D. Uma Maheshwer Rao , are hereby set
aside. Parties shall bear their own costs.
49. Decree be drawn up accordingly.
Sd/-
(Sushma Sawant)
JUDGE
Soma