BISHNU MAYA RAI Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) The learned Civil Judge, East Sikkim at Gangtok, by the impugned Order, dated 28.07.2016, in Title Suit No.12 of 2014 (Dr. Rameshwar Prasad and Others v. The Chief Secretary and Others) was considering the two preliminary issues framed, viz.

(2.) (i) It is the Petitioner's case that the Respondents No.1, 2 and 3 as Plaintiffs had filed Title Suit No.15 of 2008 (later renumbered as Title Suit No.02 of 2010) seeking Declaration, Cancellation/quashing of documents, Injunction and Consequential reliefs inter alia against the Petitioner herein, who was the Defendant No.4 in the said Title Suit. The Title Suit was dismissed by the Court of the learned District Judge, Special Division II, East Sikkim, at Gangtok vide its Judgment dated 30.03.2011 and an Appeal was preferred before this Court. By its Judgment dated 30.06.2011, in Regular First Appeal No.02 of 2011, the Judgment of the learned trial Court was upheld by this Court. Dissatisfied thereof, the Respondents No.1, 2 and 3 filed a Special Leave Petition before the Hon'ble Supreme Court being Special Leave to Appeal (Civil) No.24765/2011 which was dismissed in limine vide its Order dated 06.02.2012.

(3.) Learned Counsel for the Respondent No.1 submitted that the instant matter does not pertain to Plot No.881 as sought to be made out by learned Senior Counsel for the Petitioner but in fact relates to Plot No.882 on which plot the Petitioner has now encroached. That, this is evident from the fact that as per the Allotment Order, dated 25.01.2008, an area measuring 520 square feet was allotted to her from Plot No.881, a Government plot. That, the issue at hand concerns Schedule'C' of the Plaint filed by the Plaintiffs (Respondents No.1, 2 and 3 herein) before the learned trial Court in Title Suit No.12 of 2014. That, a perusal of the Inspection Report shows that the Petitioner is also in occupation of a portion of Plot No.882 when her allotment admittedly was only from Plot No.881, measuring 520 square feet. In fact, the Inspection Report indicates that she is now in occupation of 1102.00 square feet and the excess land which is shown in the said record is encroached upon from Plot No.882 which belongs to the Respondents No.1, 2 and 3, hence, the necessity for filing Title Suit No.12 of 2014. That, the question of the Suit being barred by res judicata or the provisions of Order II Rule 2 of the CPC as rightly concluded by the learned trial Court does not arise since the claim of the Respondents No.1, 2 and 3 in the Title Suit No.12 of 2014 pertains to encroachment of Plot No.882 which is their ancestral property and not Government land. That, the cause of action herein is different from that of the previous Title Suit.