SUSHIL JHA Vs. FUDAN KUMAR JHA

JUDGEMENT

(1.) The instant petition has been filed under Article 227 of the Constitution of India against the order dtd. 10/1/2024 passed by learned Sub Judge 1st, Pupri, Sitamarhi in Title Suit No. 38 of 2019 whereby and whereunder the application filed by the defendants/petitioners under Order VIII Rule I-A(3) of the Code of Civil Procedure (in short "the Code") was rejected.

(2.) The conspectus of the case is that the petitioners are defendants in Title Suit No. 38 of 2019 filed by the plaintiff/ respondent for recovery of possession of part of survey Plot No. 1226 having an area of 1300 sq. link (Kari), situated in the Village- Adhgaon, Hanuman Nagar, Post Office-Saura, Anchal and Police Station-Nanpur, District-Sitamarhi from the defendants petitioners and for mesne profit and for other reliefs. It transpires that the plaintiff has filed the suit claiming that he is the owner of above noted suit land and has got the land is his share after partition among his ancestors and brother. His brother has built his house on his share in Khata No. 479, Khesra No. 1226 from south side and he also constructed his house in the year 1987 on the part of the aforesaid land from south side and kept the land vacant from the north side. The defendants encroached upon the land demolishing the pillars and beams erected over the suit property by the plaintiff and also demolished the temporary house built by uncle of the plaintiff on Khesra No. 1224 and built a wall on the aforesaid plots. The defendants appeared and filed their written statement controverting the claim of the plaintiff. One of the contentions in the written statement of the defendants is that the ancestors of the defendants had title and possession over C.S. Plot Nos. 509 and 508 and corresponding plots are Revisional Survey Plot Nos. 1225 and 1224, respectively. However, C.S. Plot Nos. 508 and 509 were running obliquely in the north east direction and likewise the northern ridge of C.S. Plot No. 505 was obliquely running somewhat in the north east direction and there was difficulty in the construction of straight walls being constructed by ancestors of both the parties. So the ancestors of the defendants gave 1/2 decimal of south western portion of the C.S. Plot No. 508 to ancestors of plaintiff and in lieu thereof, the ancestors of the plaintiff had given 9 links wide and 25 links long land from north eastern portion of C.S. Plot No. 505 i.e., northern portion of R.S. Plot No. 1226 to the ancestors of the defendants in exchange and accordingly, the ancestors of both the parties of the suit had been coming into possession with perfect title thereon. Thus, the defendants claimed their title and possession over the suit land of Plot No. 1226 on the basis of oral exchange. It has also been submitted that south western portion of C.S. Plot No. 508 given in change to the ancestor of the plaintiff has been included in the map of R.S. Plot Nos. 1227 and 1184 recorded in the names of ancestors of the plaintiff and they have constructed house over the said portion of C.S. Plot No. 508.

(3.) The defendants filed a petition on 8/11/2023 under Order VIII Rule 1-A(3) of the Code for permission to produce the comparative case map of C.S. Plot Nos. 508 and 509 and their corresponding R.S. Plot Nos. with the help of R.S. and C.S. map and report prepared by the Survey Knowing Advocate and for recording the evidence of the said witnesses to prove the comparative case map and report. A reply to the said application was filed on 22/11/2023. After hearing the parties, the learned Sub Judge 1st, Pupri rejected the petition of the defendants and the said order is under challenge before this Court.