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2011 DIGILAW 1896 (PAT)

Gaya Parish Society v. Dular Chand Sao @ Ram

2011-09-06

V.NATH

body2011
ORDER Heard the learned counsel appearing on behalf of the appellant in support of this appeal. 2. This appeal has been filed against the judgment and decree dated 19.02.2010 passed by Additional District Judge, F.T.C.I, Nawadah in Title Appeal No. 10/08/07/08 reversing the judgment and decree dated 29.02.208 passed by Munsif, Nawadah in Title Suit No.12/05. 3. The plaintiff, who is appellant, has been aggrieved by the judgment and decree of reversal by the appellate court. The suit has been filed for the relief of removal of encroachment over the land mentioned in Schedule 1of the plaint by the defendant and further for restraining the defendant from interfering in peaceful possession of the plaintiff over the land mentioned in Schedule 2 of the plaint. Bereft of details, the plaintiff has claimed settlement of 36 decimals of land from ex-landlord in C.S.Plot No. 4541 which has been carved out in the recent survey proceeding as plot no. 3734. It has been stated by the plaintiff that during the recent survey operation this plot no. 3734 had been wrongly recorded in the name of State of Bihar and the plaintiff filed Title Suit No. 291 of 1989 against the wrong survey entry impleading State of Bihar as party defendant and the said suit had been decreed. Further case of the plaintiff is that the defendant has encroached a portion (Schedule II land of the plaint) of the settled land of Plot No. 3734 area 36 decimals and therefore the plaintiff has claimed the relief as aforementioned. Besides other facts the basis of the suit as mentioned in the plaint is the measurement report by the Anchal Amin in which the encroachment by the defendant has been shown. 4. The defendant by filing written statement has denied the encroachment and has claimed that he has purchased a part of the C.S. Plot No. 4541 measuring 7 and half decimals which has been carved out in recent survey proceeding as Plot No. 3731 which is adjacent to the land claimed by the plaintiff. It has been asserted by the defendant that 36 decimals land of R.S. Plot No. 3734 recorded in the khatiyan as Rasta is not the personal property of the plaintiff rather there exists a Rasta which is used by the villagers forgoing to the Church from main road. It has been asserted by the defendant that 36 decimals land of R.S. Plot No. 3734 recorded in the khatiyan as Rasta is not the personal property of the plaintiff rather there exists a Rasta which is used by the villagers forgoing to the Church from main road. Further the ex parte decree obtained by the plaintiff against the State of Bihar in Title Suit No. 291 of 1989 has also been assailed as not binding and not the deciding factor for the claim made by the plaintiff. The trial court after considering the evidence and submission of the parties has come to the finding that the plaintiff has succeeded in establishing his case and there has been the encroachment by the defendant as alleged. Consequently, the trial court decreed the suit and directed the defendant to remove the encroachment from the land mentioned in Schedule I of the plaint and further permanent injunction order has also been passed against the defendant. However, in appeal, the appellate court reappraised the evidence of the parties and after considering the rival submissions has come to the finding on the basis of Ext.7(judgment and decree of T.S.No.291/1989) and Ext.8 (Order under Section 144 Cr.P.C.)that the plaintiff has taken only 22 decimals land in settlement from the ex-landlord and not the total 36 decimals of R.S. Plot No. 3734 as claimed. Further it has also been held that there is absence of evidence regarding the location and possession of 22 decimals of land out of 36 decimals of R.S.Plot No. 3734 as claimed by the plaintiff. The appellate court below has disbelieved the case of the plaintiff regarding the settlement of the entire 36 decimals of plot no. 3734 in absence of any documentary evidence of settlement and has also found that the plaintiff has not produced such document of settlement of 36 decimal in this Suit. With regard to the allegation of encroachment by the defendant, the appellate court below on the basis of the deposition made by P.W.2 and P.W.4 regarding the house of the plaintiff being situated at a distance of 15 fit from the road has concluded that there is no encroachment by the defendant as alleged. On the basis of these findings the appeal has been allowed. 5. On the basis of these findings the appeal has been allowed. 5. Learned counsel appearing on behalf of the appellant has submitted that the appellate court below has ignored the material evidence on record and has passed the impugned judgment on misappreciation of the evidence. Developing his submissions, the learned counsel has put stress upon the report of the Anchal Amin who after the measurement has found the encroachment as alleged. It has thus been submitted that substantial questions of law arise for consideration in this appeal. After perusal of the judgments of the courts below and considering the submissions on behalf of the appellant, it is clear that the plaintiff has claimed settlement of the entire 36 decimals of plot no. 3734 but Ext. 7 (judgment and decree of Title Suit No. 291/89) and Ext. 8 (the order passed under Section 144 C.P.C.) show that the plaintiff has earlier claimed only 22 decimals of plot no. 3734 by way of settlement. The appellate court below has rightly come to the conclusion that the plaintiff has failed to establish his claim over the entire 36 decimals of R.S. Plot No. 3734 particularly in absence of direct evidence in that regard. Further the deposition of the plaintiffs’ witnesses i.e. P.W.2 and P.W.4 also go against the case of encroachment by the defendant. It could not be shown on behalf of the appellant that the Anchal Amin was authorized by any provision of law to determine the encroachment after measurement of private lands in absence of any direction by any competent court or authority in this regard. Moreover, the report of the Anchal Amin (Ext.1) is prior to the filing of the suit. As such there is no force in the submission that this report has much evidentiary value. Further on behalf of the appellants it could not be pointed out as to which material evidence has been ignored by the appellate court below. It is well settled that a reappraisal of the evidence is not permissible within the limited ambit of the jurisdiction of an appellate court in second appeal unless the findings of the courts below are shown to be perverse and in this regard reference may be made to the decision by the apex court reported in 2009(3)SCC 287. It is well settled that a reappraisal of the evidence is not permissible within the limited ambit of the jurisdiction of an appellate court in second appeal unless the findings of the courts below are shown to be perverse and in this regard reference may be made to the decision by the apex court reported in 2009(3)SCC 287. Further more in a suit for removal of encroachment and grant of injunction it is incumbent upon the plaintiff to establish his title over the suit land if the same is disputed by the defendant. In the present case, the plaintiff has failed to establish his title over the entire 36 decimals of Plot No. 3734 and has also failed to establish the location of 22 decimals of land which was his earlier case as apparent for Ext. 7, Ext,8. As such there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed.