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2012 DIGILAW 870 (PAT)

Raj Bansh Singh v. Ram Naresh Singh

2012-06-26

MUNGESHWAR SAHOO

body2012
ORAL ORDER Heard the learned senior counsel, Mr. Keshav Srivastava appearing on behalf of the appellant under Order 41 Rule 11 C.P.C. (2) This second appeal has been filed by the defendant-appellant appellant against the Judgment and Decree dated 2.2.2009 passed by Addl. District Judge, Fast Track Court No.V, Rohtas Sasaram in title appeal No.85 of 2005 / 19 of 2006 dismissing the appeal and thereby confirming the Judgment and Decree dated 23.8.2005 passed by First Munsif, Rohtas Sasaram in title suit No.43 of 2007 decreeing the plaintiff-respondent’s suit. The plaintiff-respondent respondent filed the aforesaid suit for declaration that the projection made by defendants appellants in the 3rd floor of the House is illegal and unlawful and the same may be removed at the cost of the defendants appellants and further the 4 opening windows on the ground floor in the western wall of their house and the construction of projections may also be removed. The opening of 3 windows in western wall of their house and second floor are illegal, unlawful and further for the removal of the projections and for closing of the windows and ventilators opened in the western wall in their house from ground floor to 3rd floor and for permanent injunction thereof. (3) The plaintiffs claimed the aforesaid relief on the ground that he along with brother Gama Singh purchased 2 kattha 2 dhurs by registered sale deed dated 12.12.1974 which has been shown by letters A B C D in the map attached with the plaint. There was partition between the two brothers and half portion was allotted in favour of the plaintiff towards south of the land purchased. The plaintiff constructed his house marked by letter A D F E in the map leaving 39 feet from north to south and 1.3 feet from east to west. The land of the brother of plaintiff has been shown by letter D G H C. The further case is that defendants also purchased 2 kattha which has been shown by letter B H K I in the map. The plaintiff-respondent being govt. servant had to reside outside the station and taking advantage of the absence of the plaintiff, the defendant made the aforesaid constructions projections up to 3rd floor which was objected by the family members. Then, when the plaintiff came to his house, F.I.R. was lodged and ultimately the suit has been filed. The plaintiff-respondent being govt. servant had to reside outside the station and taking advantage of the absence of the plaintiff, the defendant made the aforesaid constructions projections up to 3rd floor which was objected by the family members. Then, when the plaintiff came to his house, F.I.R. was lodged and ultimately the suit has been filed. (4) According to the defendant-appellant, this case map has wrongly been given by the plaintiff. The plaintiff has left no space of land towards east of his house. The alleged encroached portion is part and parcel of the purchased land of the defendant which has been left by them for windows and ventilator and projection. In absence of the defendants in fact the plaintiff-respondent has encroached the land of the defendant-appellant. Besides the above, the defendant also alleged that the suit filed by the plaintiff is bad for non-joinder of necessary party, i.e., the brother of the plaintiff, namely, Gama Singh. (5) It appears that the trial Court framed specific issues regarding encroachment alleged y the plaintiff. After considering the evidences and material available on record including Advocate commissioner’s report, the learned trial Court found that the defendants have encroached as alleged by the plaintiff and, therefore held that the house constructed by the defendant is in excess of the area. Accordingly, the plaintiff’s suit was decreed and the relief prayed for plaintiff was granted. (6) It appears that on appeal, the appellate Court again appointed another Pleader Commissioner to measure the land. After considering the oral and documentary evidences including the Advocate Commissioner report, the lower appellate court also found that in fact the defendants have encroached the land of the plaintiff and therefore, dismissed the appeal. (7) The learned senior counsel, Mr. Kishav Srivastava submitted firstly that the brother of the plaintiff is necessary party and in absence of the brother, the trial Court as well as appellate Court could not have decreed the plaintiff’s suit. So far this submission is concerned, it may be mentioned here that admittedly the defendants are claiming right title interest and possession over plot No.909 only whereas the plaintiff’s claim is over plot No.911 and 912. According to the plaintiff, there was partition between brother and in the northern portion, the brother was allotted half share. So far this submission is concerned, it may be mentioned here that admittedly the defendants are claiming right title interest and possession over plot No.909 only whereas the plaintiff’s claim is over plot No.911 and 912. According to the plaintiff, there was partition between brother and in the northern portion, the brother was allotted half share. In such circumstances, neither the plaintiff is claiming any interest on plot No.909 nor his brother is claiming over the same. Moreover, the case pleaded by the plaintiff is simple to the effect that the encroachment made by the defendant is on the land of the plaintiff. Therefore, it cannot be said that in absence of the brother of the plaintiff, the points in controversy between the parties cannot be decided. I, therefore, find that the brother of the plaintiff is not at all necessary party for the decision of the points raised by the plaintiff and denied by the defendants. Accordingly, this submission of the learned counsel for the appellant has got no force. (8) The learned counsel for the appellant next submitted that there cannot be any successive appointment of Pleader Commissioner in a case but in the present case, the trial Court appointed 3 Pleader Commissioners and the appellate Court also appointed out one Pleader Commissioner. So far this question is concerned, it can only be said here that it is not the case of the appellant that any of the pleader commissioner report was in favour of the appellant which was illegally not relied upon by the trial Court and rejected and then appointed fresh Pleader Commissioner. From perusal of the lower appellate Court Judgment, it appears that the appellate Court found that the appellant never prayed for appointment of any Pleader Commissioner. In such view of the matter on the ground raised by the appellant, it cannot be said the Judgment of the Courts below are vitiated. (9) The learned counsel for the appellant next submitted that on the basis of the Pleader Commissioner, the finding recorded by the Courts below to the effect that there is encroachment could not have been recorded. So far this submission is concerned, also in my pinion, it cannot be looked into because it is pure question of fact. (9) The learned counsel for the appellant next submitted that on the basis of the Pleader Commissioner, the finding recorded by the Courts below to the effect that there is encroachment could not have been recorded. So far this submission is concerned, also in my pinion, it cannot be looked into because it is pure question of fact. The Pleader Commissioners filed report clearly mentioning that the defendants-appellant have made encroachment therefore, in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, this Court cannot re-appreciate the evidence and substitutes its own finding of fact. It is not the case of the appellant that the finding of the Courts below are based on no evidence or that the Courts below have not considered the admissible evidence or that the findings of the Court below are based on inadmissible evidence. In other words, it is not the case that the findings are perverse. In such view of the matter, this question raised by the learned counsel for the appellant is also not a substantial question of law. (10) The learned counsel for the appellant next submitted that the plaintiff have not prayed for declaration of their possession over the suit land. So far this submission is concerned also, it appears that the defendants are claiming their title and possession over plot No.909 measuring 2 kattha. The plaintiff-respondent never claimed any title or possession over the land of the defendant. It is not the case of the defendant that they have prescribed their title by adverse possession. The suit has been filed for declaration that the projection constructed by the defendant-appellant is on the land of the plaintiff which has been held to be so. Therefore, in such circumstances, there is no question of praying for confirmation of possession arises. The plaintiff had prayed other relief under Section 34 of the Specific Relief Act regarding the injunction. Therefore, in my opinion, in view of the above facts and circumstances of the case, I find that no substantial question of law is involved in this case and accordingly this second appeal is dismissed at the admission stage itself.