AJAB SINGH Vs. DADU SINGH THAKUR

JUDGEMENT

(1.) Since subject-matter in both the matters are connected and interlinked, they are heard together and are being disposed of by this common judgment.

(2.) The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the plaintiff are as under:-

(3.) Plaintiff-Ajab Singh filed a suit for declaration of title and permanent injunction stating inter-alia that the suit land (earlier Khasra No.364) and after consolidation it was re-numbered as Khasra No.150, area 4.10 acres is the land held by his father Anup Singh as Bhumiswami right and it was earlier remained in possession of his father Anup Singh and after death of his father, he came into possession by cultivating the suit land. The suit land was purchased by his father on 14/5/1941 from one Sahdev Singh prior to abolition of proprietary right and it was recorded in 1954 in the name of his father. Encroachment proceeding was initiated against him in 1995, in which he was imposed with a penalty of ? 1500/- by the Tahsildar, Mungeli, which was set aside by the Sub-Divisional Officer, Mungeli and the Sub-Divisional Officer on 23/8/2000 directed to proceed in accordance with law leading to filing of suit for declaration of title and permanent injunction, in which the State remained ex-parte and decree for declaration of title and permanent injunction was granted. During the course of trial, Mr.Dadu Singh/respondent herein filed an application under Order 1 Rule 10 CPC (I.A.No.1) before the trial Court on 6/3/2002 stating that the suit land belongs to the State Government and reserved for nistar of villagers and he has easementary right over the suit land, therefore, he be impleaded as party defendant in suit. That application was rejected by the trial Court on 24/7/2002 finding no merit, against which, he preferred writ petition being WP No.330/2003, which remained pending and now that has been heard along with this second appeal. Meanwhile, the trial Court decreed the suit filed by the plaintiff. Questioning the judgment and decree of the trial Court, said Dadu Singh preferred first appeal under Sec. 96 of the CPC before the first appellate Court on 27/2/2004 along with two applications. One for permission to file appeal and another is under Order 1 Rule 8 of the CPC. On the date of presentation of appeal on 4/3/2004, the first appellate Court allowed the application filed by Dadu Singh to prefer an appeal and also condoned the delay in filing the appeal and registered the appeal and thereafter on 22/2/2006 heard the matter and ultimately on 27/2/2006 allowed the application under Order 1 Rule 8 CPC and thereafter on the same day, delivered the judgment and set aside the judgment and decree of the trial Court by allowing the appeal. Against the judgment and decree of the first appellate Court, the appellant/plaintiff preferred this second appeal under Sec. 100 of the CPC in which substantial questions of law have been formulated by this Court, which have been set-out in the opening paragraph of this Judgment.