K R BHAGAT Vs. PARMESHWAR DAYAL PATHAK

JUDGEMENT

(1.) The present appeal is against the judgment and decree dated 30.01.2004 passed in Civil Suit No.17-A/2001 by the Second Additional District Judge, Baloda Bazar. By such suit, a decree for declaration was passed that the plaintiff was owner of the land bearing Khasra No.67 admeasuring 0.704 hectare at village Aamodi. Further, the Court decreed the suit for Rs. 2,36,806/- as damages to be paid from the defendants and it was further ordered that if the amount is not paid, the decreetal sum shall carry interest at the rate of 7% within three months.

(2.) The facts of this case are that the suit was filed by one Parmeshwar Dayal Pathak since deceased. It was pleaded that he is the owner of the land bearing Khasra No.67 admeasuring 0.704 hectares. It was stated that the defendant No.2 & 3, K.R.Bhagat & A.S.Rana, the appellants herein were posted in between the period from 01.06.1999 to 08.06.1999 as Tahsildar & Nayab Tahsildar at Kasdol. The prayer for declaration decree was made to the extent that the plaintiff be declared to be the owner of land bearing Khasra No.67 at village Aamodhi, P.C. No.153/16, Tahsil Kasdol, District Raipur. It was stated by the plaintiff that earlier a Revenue Case bearing No.136A/68/95-96 was registered on a complaint made by the President, Janpad Panchayat complaining of encroachment on government land when the plaintiff started construction on his own land. Thereafter, on 20.03.1996 in that case the injunction order was passed whereby the plaintiff was stopped to raise the construction over the land. After the interim order of stay of construction, the enquiry was made. It was pleaded that after enquiry, the then Tahsildar on 106.1996 came to a conclusion that the plaintiff had not encroached upon any government land and was raising his construction over Khasra No.67 of which he was/ is the owner. It was further stated that after the construction was raised, the superstructure was leased out / rented out to the different persons. Specific pleading was further made that the defendant No.3 A.S.Rana being the Nayab Tahsildar knowing full-well that the construction raised by the plaintiff was valid & legal with all oblique motive opened another Revenue case by branding the construction to be illegal clamping the allegation that the existing superstructure is over the government land bearing Khasra No.80. The said Revenue case was bearing No.109A/68/98-99 and by the order dated 26.05.1999 the construction was branded to be illegal and was held that it was constructed over a government land and accordingly it was demolished in between the period from 01.06.1999 to 08.06.1999. It was stated that the plaintiff was not served with any notice of the second revenue case and the procedure prescribed for service of notice and demarcation was not followed and therefore the act was beyond their judicial power vested in them. It was stated that the entire so called proceeding carried out on a single day but projected to be a pending proceeding. Further the plaintiff pleaded that the demolition has caused monetary loss to him of construction as also to the reputation as he was a retired Principal of the School. Therefore, the suit was filed for damages and declaration and an amount of Rs. 4,00,300/- was claimed as damages.

(3.) All the defendants i.e. State and the officials who were arrayed as a party stated that the map which was produced by the plaintiff and attached with the plaint was not signed or endorsed by any government agency or department. It was further stated that the plaintiff had constructed superstructure over his land bearing Khasra No.67 but it was constructed over the land bearing Khasra No.80, which was adjacent to the land bearing Khasra No.67. Further, stated that without obtaining permission from the State, the construction was made over the government land and the defendant No.2 & 3, Tahsildar & Nayab Tahsildar in discharge of their official duties have demolished the encroachment made by the plaintiff; therefore, no decree can be passed against them.