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2005 DIGILAW 857 (PAT)

Punam Gupta v. Amar Chand Sarawagi

2005-09-20

M.L.VISA

body2005
Judgment 1. This is an order on hearing of appeal under Order XLI, Rule 11 CPC alongwith I.A. No. 3067 of 2005 after ignoring the defects pointed out by the office in its note dated 13.9.2005. 2. Late Radhey Shyam Sarawagi, father of respondents Nos. 1 to 6 who were plaintiffs had filed Title Suit No. 146 of 1966/113 of 1974 for declaration of his title and for recovery of possession after declaring the possession of appellant No. 2, defendant/respondent No. 8, late Labh Singh, father of respondent No. 7, late Bishwanath Prasad, father of defendants/ respondent Nos. 9 and 10. During the pendency of the suit, names of defendants/respondents No. 7, 9, 10 and 11 and defendant/appellant No. 1 were substituted. During the pendency of the suit, defendant Labh Singh, father and husband respectively of defendants/respondents No. 7 and 8 and defendant/respondents No. 8 by filing a compromise petition relinquished their right over the suit land in favour of respondents No. 1 to 6. The trial Court decreed the suit against father and husband of respondents 7 and 8 and respondent No. 8 on the basis of compromise petition and dismissed the suit on contest against remaining defendants. Respondents No. 1 to 6 filed appeal which was numbered as Title Appeal No. 16 of 1999 and Additional District Judge VI, West Champaran at Bettiah allowed the appeal on contest with cost against the contesting respondents 3 and 6 and against the appellants. Appellants have preferred this Second Appeal. 3. Learned counsel of appellants has submitted that the respondents No. 1 to 6 in their original suit, had not given the specific areas alleged to be encroached by each of the defendants. His second point of argument is that defendants No. 1 and 2 before the trial Court entered into compromise which is mentioned in the judgment of trial Court but in spite of this fact, the appellate Court has allowed the appeal and has passed the decree in respect of entire suit land including that area of suit land also on which defendants No. 1 and 2 by entering into compromise with plaintiffs/respondents filed compromise petition and relinquished their right. According to him, these are the questions of law which require consideration in this appeal. 4. The case of respodnents Nos. According to him, these are the questions of law which require consideration in this appeal. 4. The case of respodnents Nos. 1 to 6 right from the beginning is that defendants have made encroachment on their land measuring two kathas and two dhurs. The boundary, khata and khesra etc. of plot where suit land is situated were given in the plaint. When it was the case of plaintiffs/respondents that defendants have made encroachment on their land measuring two kathas two dhurs and they filed suit for declaration of their title over this land and for declaration of their possession over the suit land and recovery of suit land, I do not find that it was not necessary for them to give specific area encroached by each and every defendant. Likewise, it was also not necessary for the trial Court to give a finding that defendants No. 1 and 2 by relinquishing their right over the suit land in favour of plaintiff have removed their encroachment from a definite area and then to pass decree in respect of remaining land. The case of plaintiffs/respondents was that defendants on their land measuring two kathas two dhurs have made encroachments and this encroachment was made after entering into a conspiracy by all the defendants who by joining with each other made encroachment in the year, 1966 and constructed two huts and for making pucca constructions dug the foundation. It is not the case of plaintiffs/respondents that defendants on different dates made encroachment exclusively on different parts of land. It is true that from the suit land, defendants No. 1 and 2, by filing compromise petition, relinquished their right in favour of plaintiffs but since other defendants contested the suit which was for declaration of title of plaintiffs over the suit land, declaration of possession of defendants and recovery of its possession in favour of plaintiffs, the appellate Court, after considering the materials on record, rightly allowed the appeal in respect of entire suit land. 5. In view of the aforesaid facts, I find that no substantial question of law is involved in this appeal and the same is dismissed in limine under Order 41 Rule 11 C.P.C. 6. 5. In view of the aforesaid facts, I find that no substantial question of law is involved in this appeal and the same is dismissed in limine under Order 41 Rule 11 C.P.C. 6. Since appeal stands dismissed, the question of allowing the prayer of appellants to stay further proceedings of Execution Case No. 3 of 2005 pending before Munsif, Bagaha does not arise and I.A. No. 3067 of 2005 stands disposed of.