MD.MURTAZA Vs. MD.ISRAIL

JUDGEMENT

(1.) THIS appeal has been preferred by the defendant -appellant. The plaintiffs filed a title suit in the Court of the Munsif, Chaibasa praying relief for declaration of their right. title and interest with respect to the properties described in the Schedule of the plaint and also for delivery of possession by evicting the defendant therefrom. The claim of the plaintiffs is that they acquired the suit land of Plot No. 161 A under Khata No. 18 and house measuring an area of 14 Decimals i.e. 00.15.498 Bargakari situated' in Ward No.5 of Chakradharpur Municipality. The plaintiffs had left 3 wide Galli towards the North while constructing their house measuring 85' length from East to West. They had kept the provision for Galli for the purpose of drains and for the egress and ingress connecting their remaining portion of the land. That Galli was also subsequently shown in the survey record of Plot No. 161 A. The defendant contrary to the direction of the Municipal Authority started construction over the suit land without leaving any space towards the South of his plot. The plaintiffs protested against the same but the defendant did not pay any heed. The plaintiff NO.1 then filed an application before the Circle Officer, Chakradharpur for demarcation of his land including the suit land which was registered as Case No. 44/85 -86. An Amin was deputed and he demarcated the land of the plaintiffs and prepared a sketch map showing 3' wide Galli in the map. He also reported that the defendant illegally encroached upon the suit land belonging to the plaintiffs. The defendant thereafter removed his encroachment from the Galli and the plaintiffs continued with their possession over the same. Again in the year 1988 the defendant started creating trouble by putting obstruction in the Galli. He also forcibly collected and staked huge quantity of clay inside the Galli and put a door on the opening of the Galli causing total closure of egrees and ingress and also the drain of the plaintiff creating problem of hygiene. The plaintiffs protested against the same and the dispute ultimately led to a proceeding under Section 144 Cr.P.C. being Misc. Case No. 223/88. In the said proceeding, the S.D.O. after hearing the parties ordered the defendant to remove the nuisance and encroachment. However, the said order was set aside in Criminal Revision No. 160/89 whereby it was held that it was not a case of public nuisance rather is a civil dispute between the parties. Under such circumstance, the suit was filed for the said relief. The defendant appeared and contested the suit stating, inter alia, that the suit was time barred and there are misjoinder and non -joinder of the parties, the plaintiff NO.2 has no concern but he has been impleaded as a party. It was further stated that the entry in Municipal Survey Record was wrong and erroneous. The Galli was a part and parcel of Plot No. 95 and was in the name of Balaram Dehuri and that the defendant had purchased the Southern portion of Plot No. 95 measuring an area of 17 Decimals 834 Bargakari and constructed a residential house and the disputed land was left for the purpose of passage to garden and for other purposes. The said Galli was in possession of the vendor and after. purchase, they came in possession. The plaintiff No. 1 purchased only 14 Decimals of land by virtue of a registered sale deed dated 19.3.71 of Plot No. 161 bearing old Plot No. 704 of Kilchakra Mouza. but the plot shows an area of 15.498 Bargakari. There is nothing in the plaint to show as to how the area became bigger. It was further stated that before construction of his building he had taken permission from the Municipal Authority and has shown open space belonging to him. He denied other allegations and the statements made in the plaint and claimed himself as the absolute owner of the property in question.

(2.) ON the basis of the pleadings, learned Trial Court framed several issues. The parties led evidences, both oral and documentary. Learned Trial Court decided almost all the issues against the plaintiffs and dismissed the suit. The plaintiffs then preferred appeal before the District Judge, Chaibasa which was registered as T.A. No. 1/94. The said appeal was ultimately heard and decided by the 1st Additional District Judge, Chaibasa. In view of the grounds taken in the appeal, the lower Appellate Court discussed and considered all the aspects and after thorough discussion and consideration of the facts and evidences on record came to the finding that the plaintiffs have got valid cause of action for the suit.

(3.) AFTER hearing the parties and considering the material on record including the impugned judgments and decrees of the Courts below, I find that learned lower Appellate court has considered all the relevant facts, evidences and materials on record in correct perspective and has arrived at the finding of fact on the basis thereof that the disputed Galli belonged to the plaintiffs and that the judgment and decree of learned Trial Court was not sound and sustainable. The judgment and decree of the learned lower Appellate Court cannot be interfered with only on the ground that the Appellate Court has not met the reasons given by the Trial Court. Reference can be made to the decision of the Supreme Court in Arummghan Vs. Sundrambal reported in (1999) 4 S.C.C. 350. Learned Counsel for the appellant could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law to be framed and decided by this Court in exercise of second appellate jurisdiction.