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1992 DIGILAW 429 (PAT)

Prabhawati Devi v. Nirmala College

1992-11-26

R.N.SAHAY

body1992
R.N. SAHAY, J. This appeal is by the plaintiffs who brought suit against the respondents for declaration of the right, title and interest in respect of O.10 acres of land which was part and parcel of R.S. plot no. 153, Village-Hinoo, Ranchi. This lands has been shown as sub plot no. 153A in the map attached to the plaint. 2. The appellants were non-suited by both the Courts below on the technical ground they had failed to prove encroachment by the defendants on the portion alleged in the plaint although both the Courts below have held there was encroachment over O. 06 acres and O. 10 acres on a different portion found by the Pleader Commissioner who had measured land and made local inspection. 3. The appellants were owner of R.S. plot no. 153 measuring 2.03-Acres. The defendant respondent no.1 Nirmala College had purchased O. 91 acres by registered sale deed dated 30.7.1962 from the appellants. The plot was marked and showed as Rs. No. 153A in the map attached with the sale deed. The college after purchase constructed a building for running a women's college. Respondent no. 2 is the Administrator of the College. The plaintiffs alleged that the defendants had encroached upon further O.10 acres on remaining portion of plot no. 153. On discovery of the encroachment the appellants served a notice on 15th June, 1974 and asked respondents to vacate the encroached portion described in the scheduled to the plaint. The defendants refused to vacate on the plea the allegation of encroachment Was unfounded. The defendants in the written statement denied the allegation and prayed for dismissal of the suit. 4. On the application of the plaintiffs a Pleader Commissioner was appointed during trial who submitted a report on 6.12.1977. By consent of parties a fresh inspection was ordered and the Commissioner submitted a report on 28.3.1978. The defendants raised objection to the report. The trial Court then ordered for appointment of anothel7 Commissioner and Sri B.P. Rudra was appointed Commissioner who submitted is report on 11.12.1979. On the prayer of the defendants the Commissioner was examined by the Court. According to the report and evidence of the Commissioner the defendants were in actual possession of O.97 acres and thereby they had encroached a portion of land having an area of 0.06 acres. This portion was shown in the sketch map of the report of the Commissioner. On the prayer of the defendants the Commissioner was examined by the Court. According to the report and evidence of the Commissioner the defendants were in actual possession of O.97 acres and thereby they had encroached a portion of land having an area of 0.06 acres. This portion was shown in the sketch map of the report of the Commissioner. 5. The plaintiffs applied for amendment of the plaint in the light of the report On the Commissioner. The amendment was allowed subject to payment of cost as condition precedent. The plaintiffs having failed to deposit the cost the Court recalled the order of amendment. It appears from the record that the plaintiffs filed another application for amendment of the plaint which was allowed by order dated 3.2.1981. It appears that due to negligence of the office amendment was non incorporated in the plaint although amendment was made in the plaint by virtue of the earlier order which was scored through when the order was recalled for non payment of the post. 6. The trial Court flamed issue whether the defendants had encroached upon the land of the plaintiffs as alleged. The trial Court held that as per the report of the Pleader-Commissioner there was no land of the plaintiffs towards north western side of the plot no. 153 (as shown in the may attached to the plaint) as that was acquired by the Hindustan Steel Limited. The trial Court has observed in paragraph 10 of its judgment as follows:- "The evidence led by the plaintiffs shown that the plaintiffs were not certain about the location of encroachment and extent and position of the encroachment. They were also under the misconception that encroachment was on sub plot no. 153A. It appears from the records of the present suit that the plaintiffs attempted to amend the plaint in the light of Pleader Commissioner's report, Ext. 6. Their prayer for amendment was allowed but as they could not deposit the necessary costs, there could not be any amendment in the plaint (vide order sheet 7.6.1980). Unfortunately, the plaintiffs did not take any further steps for getting the plaint amended as sought for. According to the trial Court the defendants had encroached upon a portion of land having an area of 6 decimal over north eastern part of southern portion of plot no. 153 7. Unfortunately, the plaintiffs did not take any further steps for getting the plaint amended as sought for. According to the trial Court the defendants had encroached upon a portion of land having an area of 6 decimal over north eastern part of southern portion of plot no. 153 7. The trial Court, however, dismissed the suit on the ground that it was not possible to pass a decree which was in capable of execution. Thus the suit was dismissed only because of the finding that the defendants had not encroached upon the land as alleged in the plaint. The decision of the trial Court was on account of an error of record that the plaintiffs did not get the plaint amended. As stated earlier the amendment was allowed by the second time by order dated 3.2.81. 8. Learned Additional Judicial Commissioner on appeal affirmed judgment and decree of the Subordinate Judge although he also held that there was encroachment by the defendants. The appellate Court also committed error of record in observing that the plaintiffs did not care to amend the plaint. 9. This appeal was admitted besides the following substantial question of law. "Whether the Courts below erred in refusing to pass a decree for removal of encroachment despite the courts below having found encroachment as per report and map of the Pleader Commissioner, bat refused to pass a decree on the ground that he did not know exactly that portion of the land of the plot in question ?” 10. Shri N.K. Prasad, learned counsel for the appellants submitted that the Court below committed serious error of law in not decreeing the plaintiff's suit even in respect of 6 decimal of land on the north eastern portion of the plot: no. 153B as found by the Pleader Commissioner who was examined as DW 1 on behalf of defendants-respondents. The contention of Sri Prasad is well founded. Both the Courts below having found that the defendants had encroached an area of 0.6 acres as shown in the sketch map of the Pleader Commissioner, the plaintiffs' suit was fit to be decreed so far this area is concerned. The judgment of the Courts below is based on error of record that the plaintiffs have not got plaint amended in the light of the report of the Pleader Commissioner. The judgment of the Courts below is based on error of record that the plaintiffs have not got plaint amended in the light of the report of the Pleader Commissioner. In my opinion even if the plaintiffs had not prayed for amendment of the plaint, they are entitled to decree on the basis of the finding that the defendants had encroached upon 0.6 acres. It is to be noticed that it was not the defendants' case that they had acquired that portion by purchased or otherwise Order 7, Rule 3 or the Code of Civil Procedure provides that the plaintiffs shall give a description of the property for which the suit has been filed in the plaint. It is, how ever, well settled that error or mis-description cannot effect the decree. 11. The decree under appeal, therefore, cannot be sustained and must be set aside. The appeal is, accordingly, allowed and the plaintiffs suit is decreed. The defendants - respondents are directed to vacate that portion as shown in the sketch map of the Pleader Commissioner, There shall be no order as to costs. Appeal allowed.