LAWS(PAT)-1969-7-2

SHEO NARAYAN SINGH Vs. AMBICA SINGH

Decided On July 31, 1969
SHEO NARAYAN SINGH Appellant
V/S
AMBICA SINGH Respondents

JUDGEMENT

(1.) This second appeal by the plaintiffs arises out of a representative suit filed under Order 1, Rule 8 of the Code of Civil Procedure for declarations that plot No. 110 of village Nanhubigha in the district of Gaya is a public path and the defendants have no right to extend the Pind of an Ahar in plot No. 168 of village Amarwa into plot No. 110 and raise its level to the height of the Pind in plot No. 168 by putting earth and that the defendants have no right to construct a Chahka on plot No. 110 or to change its local features and for permanent injunction restraining the defendants from constructing a Chahka or from changing the local features of plot No. 110 or from interfering with the rights of the plaintiffs in plot No. 110 in any way. The plaintiffs also prayed for a decree directing the defendants to restore plot No. 110 to its original position by removing earth and other encroachments from it. A further relief, namely, a decree for permanent injunction restraining the defendants from storing any water in plot Nos. 111, 112 and 114 of village Nanhubigha and plot Nos. 171 and 172 of village Amarwa and from draining out the excess water of Sarikha Ahar to plot Nos. 110, 24. 35, 38, 39 and 41 of village Nanhubigha was sought in the plaint. A claim for mesne profits was also made.

(2.) According to the plaintiffs' case, in village Amarwa there is an Ahar known as Sarikha Ahar in plot No. 170 having its Pind in plot No. 168 belonging to the defendants and it irrigates only ten acres of their land. The outlet of this Ahar is towards north-west. The defendants in order to get the Ahar repaired and to get a Chahka constructed in plot No. 168 obtained sanction for a certain amount from the State of Bihar under Hard Manual Scheme (Scheme No. 5 of 1958) dated the 18th of June, 1958. The plaintiffs put forward the case that plot No. 110, which has been recorded in the record-of-rights as Chhaur Gairmazrua Am, is a village pathway since time immemorial and it is being used as a passage by the public of the locality including the plaintiffs. Plot Nos. 111, 112 and 114 of village Nanhubigha are the Kasht lands of plaintiff No. 1, plot Nos. 171 and 172 of village Amarwa belong to plaintiff No, 2 and plot Nos. 35 and 34 of village Nanhubigha belong respectively to plaintiffs Nos. 5 and 4. It was alleged in the plaint that defendant No. 1 under the pretext of executing the aforesaid scheme, in collusion with other defendants, started taking earth from plot No. 111 which was protested by plaintiff No. 1. As there was apprehension of breach of peace, plaintiff No. 1 filed a petition before the Sub-divisional Magistrate Gaya, for starting a proceeding under Section 144 of the Code of Criminal Procedure against defendant No. 1 and others including the then Anchal Adhikari, Barachatty, who was in collusion with defendant No. 1. The Anchal Adhikari, on the other hand, sent a recommendation for starting a proceeding under Section 107 of the Code of Criminal Procedure against plaintiff No. 1 and his family members. The Subdivisional Magistrate of Gaya referred the petition under Section 144 of the Code of Criminal Procedure for enquiry to the Land Reforms Deputy Collector, who, with a view to help the Anchal Adhikari, Barachatty, procured a compromise petition as a result of which the proceeding under Section 144 of the Code of Criminal Procedure was dropped and a proceeding under Section 107 of the Code of Criminal Procedure was started against plaintiff No. 1 and his family members. They were ultimately bound down by a first class Magistrate, Gaya, but in appeal the 3rd Additional Sessions Judge, Gaya, set aside the order of the Magistrate. In the appellate Court defendant No. 1 filed a petition giving an undertaking that he would not take earth from the land of plaintiff No. 1, that is, plot No. 111 and also from plot No. 110 of Nanhubigha for the repair of the Pind of the Ahar in plot No. 168 of village Amarwa. The defendants, however, in collusion with each other illegally encroached upon plot No. 110 of village Nanhubigha and made an unauthorised extension of the Pind in plot No. 110 to the extent of 80 links at the time when defendant No. 1 was doing earth work in the months of June and July 1958 and thereby encroached upon the public path and put the public in general and the plaintiffs in particular in difficulty in making use of the public passage. According to the plaintiffs, the defendants not only encroached upon the land but also raised the level of plot No. 110 to the height of the Pind in plot No. 168 with the result that the pathway had become narrow causing inconvenience to the villagers. It was also alleged that as a result of the encroachment and raising of the level of the encroached portion the water will accumulate in plot Nos. 111, 112 and 114 of Nanhubigha and plot Nos. 171 and 172 of village Amarwa and thereby the entire paddy and wheat crops will remain submerged in water and as such the plaintiffs cannot raise any crop in those plots and they would suffer an annual loss of about Rs. 1000. According to the plaintiffs, the sanction of the State of Bihar had been made for the construction of a Chahka in plot No. 168 but the defendants illegally and without any right wanted to construct the Chahka in plot No. 110 as shown by letter "A" in the sketch map appended to the plaint,

(3.) As stated in paragraph 13 of the plaint, the construction of the Chahka in plot No. 110 of Nanhubigha would cause the following injuries: (a) The village path in plot No. 110 would become impassable as the same would become a water flowing Nala. (b) Plot Nos. 34 and 36 and the other adjoining plots of village Nahubigha would become incapable of producing any crop as they would become a water flowing Nala and as a consequence irreparable damage would be caused to the owners thereof. In paragraph 15 of the plaint it has been stated that when the defendants wanted to construct the Chahka the members of the public including the plaintiffs objected and that led to an apprehension of breach of peace. A proceeding under Section 144 of the Code of Criminal Procedure was started restraining defendant No. 1 from constructing any Chahka or doing any work in plot No. 110. That proceeding was converted into a proceeding under Section 145 of the Code of Criminal Procedure. The Magistrate ultimately converted that proceeding into a proceeding under Section 147 of the Code of Criminal Procedure and the same was pending for disposal. According to the plaintiffs, the cause of action for the suit arose in July 1958 when the defendants extended the Pind in plot No. 168 by encroaching over plot No. 110 and by raising the level of the height of plot No. 110 by putting earth and also when the construction of Chahka was done by the defendants on the 4th of May, 1969.