ARJUN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE plaintiffs have filed this first appeal against the judgment and decree dated 30.11.1994 passed by Sri A.R. Ansari, the learned sub Judge IV, Nalanda in Title Suit No. 56 of 1991/ 41 of 1994 dismissing the plaintiffs-appellants? suit.

(2.) THE plaintiffs-appellants filed the aforesaid suit for declaration of title and confirmation of possession over the suit land fully described in Schedule 1 of the plaint and in the alternative prayed for recovery of possession. THE plaintiffs also prayed for permanent injunction restraining the defendants from dispossessing the plaintiffs from his land and house aforesaid. THE plaintiffs claimed the aforesaid relief alleging that the subject matter of the suit i.e. 9 decimal out of plot No. 960 under Khata No. 408 was originally recorded in cadastral survey as Kaisre Hind?. After the survey operation the grandfather of the plaintiffs constructed a Kachcha house thereon. He was a porter working in B.B. Light Railway, Bihar Sharif and the said grandfather namely Maltudas died leaving behind his only son Munshi Das who is father of the plaintiffs who came in possession of the house and land as owner thereof.

(3.) THE learned counsel Mr. Bhagat appearing on behalf of appellants submitted that the learned court below has wrongly dismissed the plaintiffs? suit as there were overwhelming evidence on record to show that the plaintiffs? grandfather and thereafter plaintiffs? father and then the plaintiffs are coming in possession of the suit land after constructing house but the learned court below has not properly appreciated the evidence. THE learned counsel further submitted that the learned court below could not have dismissed the plaintiffs? suit by drawing adverse inference against the plaintiffs for non-examination of plaintiffs as witness. THE learned counsel further submitted that the requirement of law is that the possession must be open and without any attempt of concealment and it is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. THE learned counsel further submitted that the learned court below has wrongly held that the plaintiffs? suit is barred under the provision of Bihar Public Land Encroachment Act. In support of his contentions the learned counsel relied upon (1) AIR 1981 SC 707 Kshitish Chandra Bose Vs. Commissioner of Ranchi (2) AIR 1982 SC 1081 Govt. of Andhra Pradesh Vs. Thummala Krishna Rao and another. On the basis of these decisions the learned counsel submitted that the plaintiffs were only required to prove their possession for more than 30 years which have been proved here in this case and therefore, the plaintiffs? suit is liable to be decreed.