MAHENDRA PRASAD BARNWAL Vs. ASSISTANT ENGINEER NATIONAL

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 22.2.97 passed by the Ist Additional Judge, Giridih, dismissing the Misc. Appeal No. 5 of 1997 preferred by the petitioners affiring the order dated 28.1.97 passed by the Munsif Incharge, Giridih, in Title suit No. 1 of 1997 whereby the prayer for injunction of the petitioners has been rejected.

(2.) THERE is chequered history of the case. The dispute is in respect of two plots of land which the Govt. demands to be the Govt. land while the petitioners contend the same to be in their continuous possession for last sixty five years being contiguous to their raiyati land. On previous occasion also for taking possession over the suit land, the Govt. filed a suit against the predecessor of the plaintiff petitioners but the suit was dismissed and appeal was preferred but the same was also dismissed. After that, the State authorities wanted to proceed under the Land Encroachment Proceeding and B.P.L.E. case was also registered. Objections were raised from the side of the petitioners but those objections were not being entertained and then being much enthusiastic with the order passed by this Court in C.W.J.C. N 2290 of 1990 whereby the District Magistrates and also the authorities concerned were asked to remove all kinds of encroachment. The Opposite Parties made attempts to disposses the petitioners and as such being apprehensive of dispossession forcefully, the petitioners has filed the above mentioned suit before the Court of Munsif, Giridih and also filed a petition under Order XXXIX, Rule 11 and 2 of the C.P.C. for injunction against the defendant opposite parties to restrain them in taking forceful possession of the land in question. The learned Munsif rejected the prayer mainly on two grounds, namely (i) that the petitioners could not prove by producing documents regarding their title over the suit land and (ii) that when there was order from the High Court asking the District Magistrates to clear all encroachment without delay then the plaintiffs have got no case either prima facie or for irreparable loss the balance of convience. The same view was expressed by the appellate court on being appeal preferred by the petitioners before the District Judge as mentioned above.

(3.) FROM the report of the Anchaladhikari, it could be found that the petitioners at least have got possession for last 65 years and that is there in the Govt. record itself and without going through B.P.L.E. case there can not be any taking of forceful possession. It appears that on previous occasion also, the Govt. felt that the land is Govt. land and, as such, suit was filed for evicting the plaintiffs from the suit land but the same failed and in appeal, no relief could be obtained by the Opposite parties. Failing in the civil court, the Opposite parties tried to take forceful possession on the basis of the blanket direction given by this Court under the writ jurisdiction regarding removal of encroachment. Such sort of blanket order should not be taken use of by the authorities in all cases. The order can be implemented lawfully and through proper procedure. In the present case, even if the petitioners could not show any corporeal right prinia facie but when they have got their possession for last 65 years as per the Govt. records itself then without adjudicating whether any right has been accrued by such a long period to the petitioners or not, the State authorities should not be allowed to dispossess the petitioners/plaintiffs from the enjoyment of possession for such a long period when the authorities failed in their attempt on previous occasion also even through civil suit.