MURLI PRASAD GUPTA Vs. SHEO KISHORE NARAIN

JUDGEMENT

(1.) THIS is an appeal by defendant 1 against the judgment and decree passed by the Additional Subordinate Judge of Motihari con-firming those of the Munsif of the same place.

(2.) THE plaintiffs had filed a title suit in a representative capacity representing the residents of mohalla Miscott in the town of Motihari for a declaration that plot no. 1154 measuring 16 dhurs is gairmazrua am sarak and that the defendants have got no right or title to construct any building thereon or to encroach upon, or obstruct any portion of the land in suit THEy further prayed for a direction against defendants l and 2 for removal of the bricks kept and the structures constructed on the said plot. THEy further claimed a permanent injunction against defendants 1 and 2 restraining them from constructing any building or encroaching on or obstructing any portion of the land in suit.

(3.) THE trial Court decreed the suit, and the decree passed by the trial Court was affirmed by the lower appellate Court. THE trial Court relying upon EX. 5 held that the plot in dispute was gairmazrua am and in that view of the matter, relying upon two decisions of this Court in the cases of Muhammad Waliul Haq v. Ludpud Upadhaya, 18 P. l. t. 348 : (A. I. R. (24) 1937 pat. 388) and Amiruddin Sheikh v. Sone Lal Jha 18 P. L. T. S20 : (A. I. R. (24) 1937 Pat. 669), came to the conclusion that defendant 3 had no right to grant any lease in respect of gairmazrua lands in favour of defendant 2 or defendant 1, and, as such, the latter bad acquired no right to build upon the land in question. THE appellate Court, however, has further held that the claim, if any, of defendant 3 over the land in dispute would be barred by Section 22, Calcutta Survey Act. For that purpose, it relied upon two decisions of a single Judge of this Court in the cases of Jagan Koeri v. Chairman, Gaya Municipality, 18 P. L. T. 464: (A. I. R. (24) 1937 Pat. 567) and Municipal Commissioner, Gaya Municipality v. Mt. Rupkalia, 18 P. L. T. 466: (A. I. R. (24) 1937 pat. 516). THE lower appellate Court was further of opinion that the plot in dispute would be deemed to be the property of the Motihari Municipality, and as the Municipality, though it had previously sanctioned the building of the structures, had, by a later order, prohibited defendant 1 from further constructing the building, it would be deemed to have opposed the right of defendant 1 to build upon the land. It may be mentioned that, while erecting the building defendant 1 has left a pathway about 3 feet wide in the southern portion of plot No. 1154.