CAPTAIN RAJESH KUMAR Vs. PRAMILA SINGH

JUDGEMENT

(1.) Heard the petitioner, namely, Captain Rajesh Kumar (in person) and learned counsel for the opposite parties.

(2.) This civil revision application has been filed against the order dtd. 8/6/2016 passed in Title Suit No. 463 of 2015 by learned Sub-Judge-1, Patna, whereby the learned trial court has rejected the petition filed on behalf of the defendant/petitioner under Order VII Rule 11 of the Code of Civil Procedure.

(3.) The petitioner is defendant no. 4 in Title Suit No. 463 of 2015 filed by the opposite party no. 1 for declaration of title and possession of the plaintiff with regard to the Schedule-II land and further for declaration that the said Schedule-II land is a part and parcel of the raiyati land purchased by the plaintiff along with defendant no. 5 and 6 through registered sale deed dtd. 12/6/1982 and further the order dtd. 10/12/2014 passed by the D.C.L.R., Sadar Patna in Land Dispute Resolution Case No. 93 of 2011-12 against the plaintiff is illegal, unlawful without jurisdiction void and nullity in the eye of law and is not binding on the plaintiff and also sought temporary injunction against the defendants and they be restrained from demolishing the structure standing on the land mentioned in Schedule-II of the plaint. The plaintiff with proforma defendants, namely, Arun Kumar Mishra and Vimal Kumar Mishra jointly purchased a piece of land being an area of 7.5 decimals of plot no. 1457 and 1459 respectively of Khata No. 6342 and 326 in Touji No. 5123, Thana No. 2 situated at Mouza Mainpura, P.S. Patliputra, District Patna through a registered sale deed dtd. 12/6/1982. It is further contended that after purchase of the suit property, the name of the plaintiff and proforma defendants were mutated in the revenue records vide Jamabandi No. 10391 of 2007. After purchase, it was revealed that a portion of the said land was acquired for 20 feet wide drain and two passage of 10 feet each passage through that land whereby the said purchased land was bifurcated into two parts. Accordingly, the plaintiff and proforma defendants constructed a house and 4 shops over the said land. Out of which, house was constructed south to the said drain and passage as well as 4 shops were constructed to the north of the said drain passage. It is further contended that in the year 1994, a partition took place amongst the plaintiff and proforma defendants in which house built towards northern side of the drain and one shop built towards southern side were allotted to the plaintiff whereas the rest of the 3 shops were allotted jointly in favour of proforma defendants. Adjancent north to the 4 shops owned and possessed by the plaintiff and proforma defendants, a three storied house was constructed in the year 1987 on the part of survey plot no. 1459 by the vendor of defendant no. 4/petitioner. The defendant/petitioner purchased the said property on 3/7/2010 from the said vendor and with ulterior motive and oblique purpose, a wrong recitals in the said sale deed was made with regard to the excess land having an area of 2 dhurs and 18 dhurki land which, in fact, never existed nor owned and possessed by the vendor of defendant/petitioner nor he ever asserted that prior to the execution of the sale deed, he was owning it. Defendant no. 4/ petitioner started making claim over the said excess land on the basis of the said sale deed dtd. 3/7/2010 and filed a case bearing Bihar Land Dispute Resolution Case No. 93 of 2011-12 with a claim that the plaintiff encroached upon the part of the house and land of the road and have constructed shops thereon without making proforma defendants as a party in the said case. Though the land, in question, was jointly purchased by the plaintiff along with the proforma respondents, but the plaintiff and her husband were impleaded as party in the said case. After hearing, the learned Deputy Collector Land Reforms allowed the said case on 20/3/2012 and direction was given for removal of all the 4 shops from the land in question. Against that order, plaintiff had preferred appeal bearing Case No. 173 of 2012, which was dismissed vide order dtd. 28/2/2013 / 21/3/2013 by the Divisional Commissioner, Patna. Being aggrieved, the plaintiff filed C.W.J.C. No. 10125 of 2023 before this Court which too was dismissed on 15/5/2013 with liberty to move before Bihar Land Tribunal. Accordingly, the plaintiff preferred application before Bihar Land Tribunal vide B.L.T. Case No. 321 of 2013 which too was dismissed as withdrawn vide order dtd. 14/6/2013. The learned Tribunal has held that the aforesaid case is barred under Sec. 4 of the Bihar Land Dispute Resolution Act. The same was dismissed as withdrawn to avail the proper remedy. The plaintiff again moved before this Court vide M.J.C. No. 3436 of 2013 for modification of order dtd. 15/5/2013 passed in C.W.J.C. No. 10125 of 2013 in terms of the liberty given by the learned Tribunal. The said modification application was heard and vide order dtd. 11/7/2013 passed by this Court direction was given to learned District Judge, Patna to verify the genuineness of respective sale deeds of the parties with a further direction of appointment of survey revisional commissioner for measurement of land and ultimately, the said modification application was dismissed vide order dtd. 25/7/2013. Against the aforesaid order dtd. 25/7/2013 passed in M.J.C., No. 3426 of 2013, the plaintiff preferred an appeal bearing L.P.A. No. 1052 of 2013 before this Court. The said appeal was allowed with following directions:-