COLLECTOR JABALPUR Vs. CHANDRAWATI SARAF

JUDGEMENT

(1.) This appeal is by the defendants which was initially admitted by a Bench of this Court on the following substantial questions of law:

(2.) The plaintiff thereafter filed civil suit, namely, C.S. No. 3-A/1986 seeking the relief of declaration of title and permanent injunction. However, on the assurance of Deputy Inspector General of Police the suit was withdrawn on 18-11-1987 However, once again the police officials started interfering with plaintiff's possession over the suit plot. The plaintiff filed M.P. No. 3414/1989 which was decided by the Division Bench vide order dated 6-7-1989, with the liberty to the plaintiff to file an action in the civil Court and obtain proper relief as she may feel entitled to. The plaintiff once again filed an application before the Tahsildar for demarcation of plots. The Revenue Inspector on 5-6-1990 submitted report to Tahsildar that Town Inspector, Gorakhpur did not permit to demarcate the suit plot. The Tahsildar in order-sheet dated 10-6-1990 recorded the fact that officers of the police department are interfering with the possession or the plaintiff over the suit plot. Accordingly, the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction restraining defendants from interfering with the plaintiff's possession over the suit plot. The plaintiff also claimed damages to the tune of Rs. 2000/-.

(3.) The defendants filed the written statement in which inter alia, it was pleaded that the suit is barred under Order 23, Rule 4 of the Code of Civil Procedure as previous civil suit was withdrawn without seeking the leave to institute a fresh suit. It was further pleaded that the suit suffers from the vice of non-joinder of necessary party, namely, the State Government and the suit is barred by limitation as the suit plot is in possession of the police department since 1927 It was pointed out that vide Notification dated 21-12-1910 an area admeasuring 30.815 square feet was acquired of khasra number 719 plot No. 90/340 of sheet No. 273 for construction of Gorakhpur police post and quarters of constables. However, later on police department took possession of extra adjacent land admeasuring 33,800/- square feet. It was pleaded that the suit plot is a part of extra land of which possession was taken by the State Government in 1927. It has also been averred that extra land forms part of old khasra number 430 and 431/2. In paragraph 9 of the written statement it is again reiterated that defendants are in possession of the plot No. 430 and extra land of plot No. 431/2 since 1927. The title, if any of the owner, has been extinguished.