PARMANAND THAKUR Vs. RAJKIYA MADHYA VIDHYALAYA, JALALPUR KHURD

JUDGEMENT

(1.) THE plaintiff appellant appellant has filed this second appeal against the judgment and decree dated 4.12.1995 passed by the learned Second Additional District Judge, Gopalganj in Title Appeal No. 68 of 1993 whereby the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court dated 22.4.1993 passed by the learned 3rd Additional Munsif, Gopalganj in Title Suit No. 249 of 1986.

(2.) THE plaintiff appellant filed the aforesaid title suit for declaration of title and confirmation of possession and in the alternative for recovery of possession and also for declaration that the order passed by the defendant 2nd set i.e. State authorities is illegal.

(3.) THE learned senior counsel Mr. S.S. Dwivedi at the time of hearing of this second appeal submitted that other two substantial questions of law may be formulated which are also involved for decision in the present case. According to the learned counsel the judgment of the lower appellate court is vitiated due to absolute non- consideration of plaintiffs evidence and the courts below misread and misconstrued the documents of the plaintiff and the defendants especially Ext.-C, D, Ext.2, 4, 4-A, 5 and 6 as well as other documents. According to the learned counsel Ext.-C is the sheet anchor of the plaintiffs case. After due enquiry the land was settled in favour of the plaintiff by the S.D.O. According to the learned counsel when the application of the plaintiff was received a report was called for. It was reported that the land is Parti Kadim recorded in the possession of the Malik and it is also not a public place. There is no house of Harijan near about the suit land and it is Parti land. On being satisfied with this report, by terms of order dated 1.6.1983 the land was settled with the plaintiffs. Ext-C provides that the land can be settled by the S.D.O. to schedule tribes, schedule caste and backward class (Annexure-1) whereas the lands can be settled by Collector only in favour of the military personnel. In the present case, the plaintiff filed the application for settlement wherein he clearly stated that presently he is working as military personnel in Air Force but he is a member of backward class (Annexure-1). On the basis of this fact that he is a member of backward class (Annexure-1) the land was settled by the S.D.O., therefore, the findings of both the courts below that S.D.O. has no jurisdiction to settle the land in favour of the plaintiff is wrong. According to the learned counsel Ext.-2 was Pleader Commissioner report. The Pleader Commissioner found that the house has been constructed and cultivation has been made by the plaintiff at the spot and some trees has also been planted but the appellate court did not consider this Ext.-2. Likewise the plaintiff produced Ext.6 which is the plaint of Title Suit No. 310 of 1948 to prove that the school had earlier filed the suit for declaration that plot No. 98 is the playground of the school. Now, therefore, he cannot be allowed to say that the suit land is also used as playground of the school. So far Pleader Commissioners report is concerned no objection was filed by the defendant and moreover according to the decision of this court in 1990 PLJR 833 all instructions contained in an administrative circular cannot be mandatory in nature so as to vitiate the settlement when there is a case where some deviation which is not unreasonable or irrational or mala fide is alleged.