Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 154 (JHR)

Niranjan Mahto v. State of Jharkhand

2011-03-07

POONAM SRIVASTAV

body2011
Order The instant Second Appeal preferred at the behest of the plaintiff/ appellant is listed for hearing under Order 41 Rule 11 C.P.C. 2. Judgment and decree challenged in the Second Appeal is dated 13th March 2008/28th March 2008 passed by the Xth Additional Judicial Commissioner, Ranchi, in Title Appeal No. 27 of 2004 dismissing and confirming the judgment dated 12th April 2004 and the Decree dated 23rd April 2004 passed by the Munsif, Khunti, in Title Suit No. 11 of 1995, whereby the learned Court dismissed the suit of the plaintiff/appellant on contest. 3. Title Suit No. 11 of 1995 was preferred by the plaintiff claiming reliefs for a decree for declaration regarding the house of the plaintiff standing over R.S. Plot No. 2078 situated in village Ulilohar, P.S. Tamar, District Ranchi to the effect that he has not encroached on the public land and also claiming a sum of Rs. 5000/as compensation for harassment and also towards losses suffered by the plaintiff on account of incorrect report of defendant no. 3 and also costs of the suit. 4. The pleadings of the suit were that father of the plaintiff had instituted a Partition Suit No. 122 of 1977 in the Court of Sub-Judge. Ranchi. which was decreed and in conformation with the final decree passed in the said suit. the house standing over R.S. Plot No. 2078 was allotted to him and he was in possession thereof. One Brajendra Nath Mahto made a false complaint that the plaintiff has encroached a portion of R.S. Plot Mo. 2097. The Amin measured the said plot and found that the plaintiff had encroached over 15 Kari A proceeding under Section 133 Cr.P.C. was commenced and S.D.M. Khunti directed the plaintiff to remove the encroachment. The order was challenged in Cr. Revision No. 152 of 1993, which was dismissed. Consequent thereon the instant suit for declaration was instituted. 5. The trial Court framed as many as 6 issues. Issue nos. 5 and 6 were in respect of encroachment over R.S. Plot No. 2097 and if there was any encroachment then what was the relief• to which the plaintiff was found to be entitled to. Issue no. 4 was also on the question that whether the house of the plaintiff stood exclusively on R.S. Plot No. 2078 or not. Issue nos. 5 and 6 were in respect of encroachment over R.S. Plot No. 2097 and if there was any encroachment then what was the relief• to which the plaintiff was found to be entitled to. Issue no. 4 was also on the question that whether the house of the plaintiff stood exclusively on R.S. Plot No. 2078 or not. The trial Court dismissed the suit, which was challenged in the First Appeal, which was also dismissed and the judgment and decree passed by the trial Court has been confirmed. 6. In the instant Second Appeal a number of substantial questions of law .have been raised. The two questions that have been pressed before me are enumerated below: "(A) Whether either of the learned Courts below had framed any issue in regard to the facts of the alleged encroachment, said to be, on R.S. Plot No. 2097, which cannot be a road, when everywhere the Road is demarcated beyond any Plot of land, since in the pleadings of Defendant No. 4 in paragraph 3 it says that the road is existed since time immemorial? (8) Whether the learned tower Appellate Court has not tried to make out a third case of negative reliefs u/s 34 of the Specific Relief Act, beyond the pleadings?" 7. The learned counsel has laid stress on his argument specially fault findings on Issue nos. 4, 5 and 6. The argument is that reasonings attributed by the Courts below coming to a conclusion that the plaintiff had encroached the public land and it was during the course of the proceedings, the same was removed is incorrect. 8. I have given a careful consideration to the arguments advanced on behalf of the appellant and scrutinized the two judgments. The findings given by the two Courts below are on the basis of appreciation of evidence and the reliefs claimed by the plaintiff for a declaration in a negative character is a misconceived relief. It is not a declaration for claiming entitlement of any part of the property but on the contrary a declaration to the effect that he has not encroached on the land in question. Thus a backhanded relief is being claimed. This is absolutely beyond the scope and legally cannot be granted. Besides the findings of both the Courts are all findings of fact. Thus a backhanded relief is being claimed. This is absolutely beyond the scope and legally cannot be granted. Besides the findings of both the Courts are all findings of fact. It is noteworthy that the appellate Court has specifically discarded• the claim of the plaintiff on the ground that filing of the suit is only to circumvent the proceeding under Section 133 Cr. P. C., where the plaintiff was found to have encroached on public land. The question raised in the instant Second Appeal is absolutely devoid of merit without any substance and least of all will not constitute existence of any substantial question of law. 9. In the instant Second Appeal the judgments impugned are concluded finding on fact and cannot be interfered by reappraisal of evidence. The findings by the Court that plaintiff-appellant encroached public land are questions of fact. 10. In the circumstances, I do not find any ground for interference. The suit as well as the First Appeal was rightly dismissed. In my view, there is no merit for consideration and, accordingly; the instant Second Appeal is dismissed. No order as to the costs.