PRADIP YADAV Vs. STATE

JUDGEMENT

(1.) Heard learned Counsel for the petitioners and learned Counsel for the State.

(2.) It appears that while public and Katihar Municipality is claiming particular land which is subject matter of dispute to be a public land over which a public road exists but the petitioners have challenged orders passed by Collector, Katihar as well as original order passed by Circle Officer, Katihar in Land Encroachment cases whereby they have ordered for removal of alleged encroachment by the writ petitioners over the land in question appertaining to Khata No. 1102 and part of Khesra No. 904 of Ward No. 1 Katihar Municipality. Defence of the petitioners is that before the proceedings were commenced for removal of alleged encroachment they had already preferred Title Suit No. 94/90 against Commissioner of Katihar Municipality and obtained ex-parte Judgment and decree dated 24-4-93 contained in annexure-3. It appears from the Judgment of the Civil Court contained in annexure-3 that the suit had been decreed in respect of part of plot No. 904 only and on the north boundary of the said plot there is admittedly a public road.

(3.) In the facts of the case, it is just and proper to direct the concerned respondents to effect the order for removal of encroachment only to the extent that it does not violate the Judgment and decree of the Civil Court. We have noted the fact, as submitted by learned Counsel for the State, that against the said ex-parte decree passed in Title Suit No. 94/90 by Munsif, Katihar a Miscellaneous case for setting aside that Judgment and decree bearing No. 15/93 had been filed and at the relevant time when the appellate order was passed by the Collector, Katihar, the said case was pending.