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2001 DIGILAW 699 (PAT)

Doma Chik v. Babu Chand Sah

2001-08-06

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This Second Appeal is directed against the judgment passed by the 6th Additional District Judge, Sasaram, in Title Appeal No. 33/86. The defendant of the Title Suit No. 6 of 1983 has preferred this appeal before this Court. 2. The plaintiff Radha Sah whose heirs are respondents before this Court had filed the aforesaid suit seeking removal of encroachment of their land over Plot No. 194 as also from 196 which was a lane. The alleged encroachements were described as A.B.C.D. and B.L.H.G. respectively by the sketch map attached to the plaint. 3. The case of the plaintiff was that his house stood on Plot No. 194 and on the southern portion of the plot he had left a Kolle-cum-Sehan for his personal use. To the immediate south of this Kolle there was a defendants Plot No. 196 and to the immediate each of the housse of the parties there is a municipal lane over Plot No 195 and the water tap of the plaintiffs house passes through western edge of the municipal lane. The defendant during the course of remodeling his house started raising mud-built construction on 25-12-1982 and usurped the plaintiffs southern Kolle-cum-Sehan and he also encroached on Plot No. 196 (Municipal lane). 4. The defendant-appellant had denied all the allegations of the plaintiff regarding the alleged encroachment upon his Sehan or upon the municipal lane. 5. The trial Court on the basis of evidence adduced by the parties as also on the basis of Pleader Commissioners report decreed the suit. The appellate Court confirmed the judgment of the trial Court regarding the encroachment upon the plaintiff-respondents Plot No. 194, but reversed the finding regarding the encroachment upon the municipal lane over Plot No. 195. There is no cross-appeal or cross objection against this finding of the appellate Court. The appeal is confined to the judgment and decree of the appellate Court regarding the alleged encroachment upon the plaintiffs land on the southern portion of his house. 6. The judgment of the trial Court was criticized on the ground that the trial Court did not discuss the oral evidence and it rather held that the oral evidence of the parties would not lead to any conclusion. The learned trial Court rather depended upon the report of the Pleader Commissioner and based his finding on the same. 6. The judgment of the trial Court was criticized on the ground that the trial Court did not discuss the oral evidence and it rather held that the oral evidence of the parties would not lead to any conclusion. The learned trial Court rather depended upon the report of the Pleader Commissioner and based his finding on the same. The Pleader Commissioners report was not scientific and, therefore, no reliance should have been placed upon the same. The same criticism was advanced against the judgment of the appellate Court as well. 7. However, I find that the Pleader Commissioners report was confirmed without any objection. The appellate Court has stated in its judgment that, of corse, an objection was filed against the Pleader Commissioners report, but this objection was filed after the report was confirmed by the trial Court without any objection or protest. Moreover, the Pleader Commissioner was examined as P.W. 5 and he was subjected to cross-examination. The appellate Court has rather discussed the oral evidence of the parties besides the Pleader Commissioners report and his evidence. The finding of the appellate Court is based upon discussion of the oral evidence of the parties as well as upon the evidence of the Pleader Commissioner as P.W. 5 and his report Ext. 3. So, I am of the opinion that the finding of fact arrived at by the appellate Court is almost final. The criticism that Pleader Commissioners report was not scientific is not sustainable because both the lower Courts have held that the Pleader Commissioner had visited the place of occurrence after notice to both the parties and he measured the alleged encroachment scientifically. It was submitted before me that Pleader Commissioner had failed to report in his report as to what area was amalgamated with the land of the defendant and what area ceded from the land of the plaintiff. Hence, the Pleader Commissioners report was not scientific and it could not be relied upon. However, since both the lower Courts discussed the evidence of the Pleader Commissioner and gave a concurrent finding. I do not think that this Court has occasion to interfere with the finding of fact. The substantial question of law formulated for decision in this appeal was whether the appellate Court had considered the evidence in accordance with law. However, since both the lower Courts discussed the evidence of the Pleader Commissioner and gave a concurrent finding. I do not think that this Court has occasion to interfere with the finding of fact. The substantial question of law formulated for decision in this appeal was whether the appellate Court had considered the evidence in accordance with law. I fail to understand what was the legal infirmity in consideration of the evidence by the two lower Courts. I am, therefore, of the opinion that this second appeal is not sustainable. 8. In the result, this appeal is dismissed.