RAMAUTAR GOPE Vs. SHEONANDAN MISTRI

JUDGEMENT

(1.) The suit by the plaintiffs, who are main respondents in this Court, was for declaration of title and recovery of possession in respect of a lane bearing municipal Khasra No. 334 and for mandatory injunction directing the defendants to close their door and windows facing that lane. In defence, the main pleas raised were (i) that no encroachment had been made by the defendants over the lane, and (ii) that the suit, as framed, was bad for want of notice under Section 508 of the Patna Municipal Corporation Act, 1951. It is not denied that on the east of the lane in dispute is the house of the defendants which, during the cadestral survey was measured as plot No. 83 and in the municipal survey in plot Nos. 713 and 714. And that on its west is the house of the plaintiffs, which, during the cadestral survey was measured as plot No. 76 and during the municipal survey as plot No. 333. Both the Courts have concurrently found that the land in dispute forms part of the plaintiffs' plot on the west, namely, that of cadestral survey plot No. 76 and municipal survey plot No. 333. The trial Court, however, dismissed the suit, on the ground that the suit, as constituted, was hit by the mischief of Section 508 of the Patna Municipal Corporation Act, 1951. The lower appellate Court, has taken a different view on that question. In the opinion of the lower appellate Court, this suit is not hit by the aforesaid Section 508 of the Patna Municipal Corporation Act, even though Patna Municipal Corporation has been impleaded as a party defendant to the present action. Accordingly, the lower appellate Court has decreed the suit.

(2.) Now as against that judgment and decree, only the principal defendants have come up in second appeal to this Court. That means, there is no appeal filed on behalf of the Patna Municipal Corporation. Mr. R.S. Chatterji appearing for the appellants in support of this appeal, raised four points (i) that the lower appellate court erred in law in discarding the two exhibits of the appellants, namely, Exts. C and C(1), (ii) that the lower appellate court in law was wrong in taking into consideration the report of the pleader commissioner, in view of the fact that the commissioner was not examined as a witness at the trial, (iii) that the suit, as framed in the present case, is hit by Section 508 of the aforesaid Patna Municipal Corporation Act, and as such it should have been dismissed, and (iv) in any view of the matter, the lower appellate Court was not right in passing the order that "the defendants 1st party shall close the door and the windows in the western wall of their house within a month of the date of the decree, failing which they shall be dosed at their cost through the processes of the Court." I take up these points one by one in the order in which they have been stated above.

(3.) As to the first point, it will suffice to say that Exts. C and C(1) have been relied upon by the appellants to show that therein the boundaries given of the properties covered thereunder give support of their case. In other words, those documents have been relied upon by the appellant only prove that the boundaries given therein show that the land in dispute is not the exclusive property of the plaintiffs. The lower appellate Court has elaborately discussed this point. In my opinion, he has rightly relied upon the rule of law as laid down to Soney Lal Jha v. Darabdee Narain Singh, ILR 14 Pat 461: (AIR 1935 Pat 167) (FB), in rejecting the same. It cannot be denied that Exts. C and C(1) are documents of the vendors of the present appellants, and, as such, the statements of a third, party. There is no evidence on the record that they are dead, nor they have been examined in this case. As such, the statements made about the boundaries in those documents cannot be held in law as admissible against the plaintiffs of the present case.