BALGOVIND SINGH AND ANOTHER Vs. DEOLAGNI AND OTHERS

JUDGEMENT

(1.) The plaintiffs filed a suit for removal of encroachment from a small area of land fully described in the plaint schedule, situate in Gaya town. The suit was decreed by the trial Court. The defendants appealed. The appellate Court agreed with the plaintiff's case and recorded the findings in their favour. However, in paragraph 17 of the judgment, the learned Additional District Judge held that since the encroachment in question is to the extent of 18 links north to south and 3 links east to west, no decree should be passed in view of the decision in Niranjan Mandal v/s. State of Bihar ( : A.I.R. 1978 Pat 1). It was observed in that case that it is now well settled that if the alleged encroachment is less than 5 links it cannot be held with certainty that there is ah encroachment at all. On that basis, the appeal was allowed and the suit has been dismissed. The plaintiffs have now come up in second appeal. The observations relied on were made by a Bench of this Court of which I was a member in a writ application where on the reports submitted by the Karamchari an order of eviction had been issued. There were two reports, one stating that there was encroachment of one link and, according to the second report, it was to the extent of four link. That case was concerned with encroachments made in rural area. The scale used for preparation of maps in villages is very different from the scale used in urban areas like Gaya town. Further, the observations appear to have been made in the context of the facts discussed in paragraph 3 of the judgment and it was not laid down as an inflexible rule of universal application. I will further illustrate the point. Let us assume that there are two plots side by side and their lengths and breadths are all admittedly known with accuracy. In that event, even if there is small encroachment which can be confirmed by measuring two plots and finding the breadth of one plot less by a particular measure and breadth of the other plot longer by the same measure, it can fairly be found that a case of encroachment has been made. I, therefore, hold that the decision of the lower appellate Court dismissing the suit as a whole on the basis of the reported judgment is not in accordance with law.

(2.) No body appears on behalf of the respondents to oppose the appeal. However, since the cited decision might have weighed with the learned Additional District Judge in judging the evidence and recording the findings of fact. I consider it advisable not to dispose of the suit finally at this stage. The decision of the lower appellate Court, however, is set aside and the case is remitted to the lower appellate Court for fresh decision in the light of the observations made above. The Court should now hear the parties once more and all the questions of fact before proceeding to judgment. The appeal is accordingly allowed. There will be no order as to costs of the second appeal in this Court.