(1.) This Rule was obtained by the defendant in Title Suit No.362 of 1980 of the Court of the learned Munsif, Uluberia on a revisional application and is directed against an appellate order dated June 29, 1981, passed by the learned Subordinate Judge, 3rd Court, Howrah, in Misc. Appeal No. 28 of 1981 thereby affirming an order of temporary injunction granted by the learned Munsif as against the defendants. The Rule is being contested by the plaintiff opposite party, the Zilla Parishad, Howrah.
(2.) It is not in dispute that by a registered deed of lease dated December 10, 1906, the District Board of Howrah, the predecessor-in-interest of the present plaintiff granted permanent lease in respect of 8 cottahs 9 chittaks and 35 square feet of barrow pit land described within boundaries in favour of the predecessor-in-interest of the present defendants. It would appear from the boundary of the leasehold land as set out in the said deed of lease that but for a village pathway on the north and Bagnan Station Road on the west there was no land of the lessor on the other two sides of the land so leased out. Such a permanent lease was granted on the consideration that the predecessor-in-interest of the present defendants excavated a tank for the District Board on his own land adjacent to the leasehold land abutting on the village pathway. It is also not in dispute that the predecessor-in-interest of the present defendants erected permanent structures on a part of the leasehold land since recorded in the C.S. records of 1930 the leasehold land being recorded as C.S. dag Nos.1108, 1100 and 1099. It is also not in dispute that the total area of these three C.S. plots has been recorded as 20 decimals or near about 12 cottahs but whole of it has been recorded as in the possession of the defendants.
(3.) In that background when the present defendant/petitioners started raising further constructions of permanent nature on the 3 plots as aforesaid the plaintiff raised a dispute to the effect that the defendants are encroaching upon Zilla Parishad land to the extent of nearly 4 cottahs. A proceeding under S.144 of the Code of Criminal Procedure was initiated on behalf of the Zilla Parishad wherein enquiry being held through an engineer it was found that there is no major encroachment either on the Station Road or on the village pathway and the defendants having given an undertaking in writing to the Court that they would make no construction which would in any manner encroach upon the Station Road or the village pathway as per the enquiry report submitted in the said proceeding, the learned Magistrate disposed of the said proceeding recording the said undertaking.