AJAB NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The plaintiff, Sri Ajab Narain Singh has filed this appeal against the judgment and decree dated 30.09.1993 passed by Sri B.N.Mishra, the learned Sub Judge II, Patna in Title Suit No. 262 of 1983 dismissing the plaintiff-appellants suit.

(2.) The plaintiff-appellant filed the aforesaid suit for declaration of his title over the suit land described in schedule 1 of the plaint and further for recovery of possession with respect to 3 Kathas of land described in schedule 2 of the plaint. The plaintiff also prayed for permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land and making any construction over it.

(3.) According to the plaintiffs case, the survey plot no. 1628 measuring 3.93 acres at Mauja- Mainpura, Thana No. 2, P.S.- Phulwarisharif, District-Patna was in use of the villagers since time immemorial. The said land was recorded as Garmajarua Aam in the record of right. The family of the plaintiff had a Khalihan over western portion of the suit plot over an area of 10 Kathas since time immemorial. The ancestors and thereafter, the plaintiff are coming in actual physical possession of the same since time immemorial. The plaintiff possessed the suit land uninterruptedly in the knowledge of the defendants and ousting them for more than many 12 years. As such, the plaintiff has acquired title over the disputed land by adverse possession. About 25 years ago, the plaintiff enclosed the disputed land measuring about 10 Kathas and constructed several pucca constructions over said 10 Kathas. The plaintiff inducted tenants who are running tea stalls, fish shops, vegetables shops etc. The plaintiff is also running a timber and furniture shop in a part of suit land. The character of the suit land has changed 25 years ago and now, it is homestead sahan land of the plaintiff. The plaintiff has also filed title suit being title suit no. 67 of 1980 and 68 of 1980 against the different tenants for their evictions which were decreed in favour of the plaintiff. The Housing Construction Society created trouble, so, 144 Cr.P.C. proceeding was initiated being Case No. 817(M/74). The said proceeding was dropped and again trouble started, so, another 144 Cr.P.C. proceeding was initiated which was converted into 145 Cr.P.C. proceeding and it was decided on 20.11.1980 in favour of the plaintiff. The plaintiff came to know that the defendants are going to construct over the disputed land so, he requested not to dispossess him and construct over the suit land. Subsequently, 144 Cr.P.C. proceeding was initiated which was again dropped. The plaintiff filed Criminal Revision No. 441 of 1983 and the Honble Court directed to maintain status quo but the defendants proceeded to construct and therefore, a contempt application was filed. The said contempt application was also dropped. Then the plaintiff filed C.W.J.C. No. 3710 of 1983 regarding the entire 10 Kathas land for issuance of Writ of Mandamus in respect of 3 Kathas of land from which, the plaintiff had been dispossessed but the Honble High Court dismissed the said writ application and directed the plaintiff to file suit. After service of notice under Section 80 C.P.C., therefore, the plaintiff filed suit against the defendant. (4) The defendants appeared and filed a contesting written statement alleging that the suit is bad for non-service of notice under Section 80 C.P.C. The State of Bihar transferred 45 decimals of land for construction of Patliputra Thana and its building. Six flats have already been constructed and Thana building has also been constructed but the same has been stayed by the order of the Court. Several lacs of Rupees have already been spent in construction of the buildings. The suit is bad for undervalue and the plaintiff is liable to pay ad volerum court fee. The further case of the defendants is that by merely using Government land as Khalihan, nobody will acquire title by adverse possession. Khalihan is used temporarily for a few days only in every year. The defendants also denied acquisition of title by adverse possession and also possession for more than many 12 years. The defendants also stated that the plaintiff has neither acquired title nor is in possession of any portion of the suit land. (5) On the basis of these pleadings, the learned Court below framed 11 issues as follows : (i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action for the suit? (iii) Is the suit barred u/s 34 of the Specific Relief Act? (iv) Is the suit bad for non-compliance of Section 80 C.P.C.? (v) Is the suit bad for non-joinder of necessary parties? (vi) Is the suit barred under the principles of waiver, estoppel and acquiescence? (vii) Did the plaintiff acquire title by adverse possession over the suit land? (viii) Is the plaintiff entitled for declaration of his title over the suit land? (ix) Is the plaintiff entitled for recovery of possession over three kathas of land? (x) Is the plaintiff entitled to the relief claimed? (xi) To what other relief or releifs, if any, the plaintiff is entitled for? (6) After trial, the learned Court below found that the contentions of the plaintiffs of adverse possession failed and the plaintiff is not entitled to a decree for declaration of his title over the suit land and, therefore, he is not entitled for recovery of possession. (7) The learned counsel appearing on behalf of the appellant submitted that the learned Court below has wrongly dismissed the plaintiffs suit. According to the learned counsel, the plaintiff has acquired title over the disputed land by adverse possession. The learned counsel further submitted that he is still in possession of 7 kathas land and he has been dispossessed from only 3 kathas land and, therefore, he has field the suit for declaration of his title over entire suit properties and for recovery of possession for only 3 kathas. The learned counsel further submitted that there are overwhelming evidences to show that the plaintiff is in possession over the suit properties for many 12 years as such, has prescribed his title by adverse possession. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiffs suit be decreed.