BAJRANG PRASAD CHOURASIA Vs. SANJAY GARG

JUDGEMENT

(1.) THE substantial question of law to be answered in this second appeal is as follows : ''

(2.) THE question aforesaid arose out of the following facts : The plaintiff brought a suit praying for the following reliefs : ''

(3.) THE suit was contested by the defendant by filing written statement. As per written statement the case of the defendant was that the suit is not maintainable, the plaintiff has got no cause of action for the present suit. The suit is undervalued, hence the trial Court has got no jurisdiction. The suit as bad for non - joinder and mis -joinder of parties and cause of action. The suit is barred under the principle of estoppel waiver and acquiescence and principle of natural justice the suit was also barred by limitation. The suit is premature and the suit is barred under Order 2, Rule 2 of the CPC. Further case of the defendant was that the plaintiff has no right title or interest over the disputed land. It was further case of the defendant that one acre of land in plot No. 1366 including the suit land has been acquired by Ramesh Chandra Garg, the father of the defendant. The further case of the defendant was that plot No. 1366, Khata No. 53 was gair abad malik and vested in the State of Bihar with the vesting in Jamindari. The land in suit was danga patit and was made fit for cultivation by Panu Napit and Nakul Napit in the year 1956 who had land contiguous to it in plot No. 1355. This matter was in knowledge Karamchari and a report of encroachment was submitted to the Circle Officer, Govindpur who started a proceeding for settlement of this land under Case No. 190 of 1964 -65 and the said Circle Officer by his order dated 23.9.1967 settled one acre of land of plot No. 1366 on taking salami and fixing rent therefore and accordingly. The land was settled in favour of the said Panu Napit and Nakul Napit, a correction slop along with the sketch plan of the said plot was issued in favour of the said Panu Napit and another. The said Panu Napit and Nakul Napit while in possession sold the land of plot No. 1355 and 1366 to Gajendra Prasad Chauhan and Praveen Kumar P. Chauhan by two registered deed of sale No. 15085/71 and 17760 of 1971. In the year 1978 bv Sale Deed No. 6011/78 and 6012 of 1978 Gajendra Chauhan and Praveen Chauhan transferred their right title and interest in plot No. 1355 to Ramesh Chandra Garg and Smt. Puspa Garg, Ramesh Chandra Garg and Puspa Garg, the mother of the father of defendant immediately after purchase came in possession of the said plot of land got it enclosed within a boundary wall and orally settled the land and allowed them to construct a Coal Briquette factory thereon in the process of enclosing the said land within a boundary wall the said Ramesh Chandra Garg encroachment upon a portion of land measuring 3 decimals on the Southern side bearing plot No. 1309 for converting the said land with G.I. road and also constructed a path way on the said plot of land No. 1309 by encroaching 2 decimals of land out of the said plot No. 1309 and as such a proceeding of encroachment was started on the report of Karamchari to the CO. on 28.12.1985 in Encroachment Case No. 10(x)/85 -86 and a recommendation was made for the settlement of land in favour of Ramesh Chandra Garg. During the recent survey of the said land the schedule land has been recorded in the name of Ramesh Chandra Garg who has been in possession thereof to the exclusion of plaintiff and all other persons. In this way defendant is in possession over the suit land since 1918. The plaintiff has got no right, title or interest over it. The sale deed executed by Dayamanti Devi is a collusive. It was the further case of the defendant that the land in suit being Gair -Abad Malik, no question ever arose for settlement thereof in favour of Hardhan Mandal in any manner whatsoever and for delivery of possession and Bulaki Ram Versus Jatru Mahali grant of any Hukumnama in his favour. Therefore, the suit was liable to be dismissed.