BANSHI BHAGAT Vs. KISHUN BHAGAT

JUDGEMENT

(1.) This second appeal has been filed by the defendant from a reversing decision dated 31st March, 1976, of the Subordinate Judge, Auranga-bad. The suit was for a declaration of title and recovery of possession over the khatiani land bearing plot No. 1127 of khata No. 87 measuring 35 decimals of land of village Obra, police station Obra, in the district of Aurangabad. It was further prayed that the rooms and verandah which had been constructed by the defendant during the pendency of the suit be demolished and the plaintiffs be given its vacant possession. The lower appellate court accepted the case of the plaintiffs and held that the plaintiffs had title to the case land and that the defendant dispossessed him from the suit land by the construction of a house during the pendency of this suit. It accordingly, decreed the suit and directed the defendant to demolish the house within three months of its order.

(2.) In this case it is not disputed that a notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (briefly the Act) was published in the official gazette when the title appeal arising out of the present suit was pending in the lower appellate court with respect to Obra Anchal in which the disputed land lay. The defendant-appellant has mentioned about this notification in an affidavit filed in this Court and this fact has not been controverted in the counter-affidavit of the plaintiff-respondents.

(3.) The substantial question of law which was formulated by this Court under Section 100 (4) of the Code of Civil Procedure is: