CHANDRESHWAR Vs. TEJAN GOPE

JUDGEMENT

(1.) This second appeal has been preferred against the judgment and decree dated 26/2/1990 passed by Sri Raja Ram Singh, Additional District Judge XIII, Patna in Title Appeal No. 101 of 1984 whereby he has affirmed the judgment and decree dated 29/6/1984 passed by Sri Kali Dayal Mishra, Additional Munsif II, Patna in Title Suit No. 53 of 1980.

(2.) Being aggrieved by and dissatisfied with the said judgment and decree, the defendants -appellants have preferred this appeal.

(3.) The brief facts of the case are as follows : The plaintiffs - respondents brought a title suit for declaration of title and confirmation of possession or in the alternative, for recovery of possession in respect of the suit land being a portion of S. P. No. 258 fully described in Schedule I of the plaint and shown by the sketch map. The claim of the plaintiffs is that they are members of the joint family of which plaintiff No. 1 is the Karta. The defendants were also members of the joint family but sometime back they were separated. Survey plot No. 231 which is situated north of the land of the suit plot is the ancestral land of the plaintiffs which was acquired by the ancestor of the plaintiffs in exchange of S. P. No. 345 and since then the plaintiffs have been coming in possession of the said land. The suit plot i.e. S.P. No. 258 is recorded as Gairmazrua Aam Alang but the portion adjoining south of the village was useless and, therefore, the people of the village encroached upon the same on different portions in front of their respective houses long ago. After acquiring S.P. No. 231 in exchange of S. P. No. 345, the ancestors of the plaintiffs constructed a house as Janani Kita over the same and also encroached upon the land in suit. It happened about more than 55 years ago. The ancestors of the plaintiffs after encroaching upon the suit land levelled the ground, constructed a Jhopra for keeping cattle and put up several Nads and Khuta over the same, fenced it from the west and kept exclusive control over the land in suit to the ouster of the public including the defendants since over 55 years and thereby the plaintiffs have perfected their title by way of adverse possession. The defendants had or have no concern with the said land. Further case is that the defendants first party have their house on survey plot No. 299 which is west of the suit land. They had their Kikas towards the west in the Gali and they used to keep and feed their cattle towards west of plot No. 299. Further case is that since old Kacha wall of the plaintiffs on the western side of the suit land had fallen down in rainy season in the year 1975, as such the plaintiffs started constructing another brick-wall on that place and raised the wall upto 6 feet high when the defendants -first party after forming a mob came upon the suit land and started assaulting the plaintiffs for which the plaintiffs lodged a criminal case and the defendants also lodged a counter case. Both the cases ended in conviction of both the parties. Further case is that just before the occurrence of assault, the defendants first party opened a new door in the wall of their house towards east and south of the disputed land and started making false claim over the suit land although the fact is that the land in question has been coming in exclusive possession of the plaintiffs for over 50 years and neither the defendants first party nor any member of the village ever objected or interfered with the possession of the plaintiffs. Further case is that the defendants -first party are being assisted by one Narayan Yadav, Mukhiya and under the influence of the said Mukhiya the police in collusion of the defendants first party gave a false report that by constructing the wall upon the suit land the plaintiffs were obstructing the flow of Nali of the defendants - first party. The fact is that defendant Chandeshwar Gope had one Nali of his house in the west but he illegally and forcibly opened a new Nali towards the east to join in the Nali of the plaintiffs. Further case is that on the basis of the police report, a proceeding under Section 144 of the Code of Criminal Procedure was started between the parties which was converted into Section 145 Cr. P.C. proceeding and in the said proceeding, the order was passed on 4-11-1973 by which the possession of the defendants first party was declared over the suit plot. It is said that the said order is quite perverse and against the materials brought on record. Further case is that in spite of declaring the possession of the defendant 1st party by the learned Executive Magistrate over the suit land the plaintiffs' possession was not disturbed and the plaintiffs remained in physical possession of the suit land but since a cloud had been cast on the title of the plaintiffs by the said order and hence, necessity of filing of the suit arose. It is said that although the members of the village have got no interest in the land in suit but even then the Gram Panchayat has been impleaded as defendant second party inasmuch as all the public lands of the village have been vested in the Gram Panchayat.