APPEAL FROM THE APPELLATE DECREE No.71 OF 1997 ---- Against the judgment and decree dated 13.02.1997 passed by Additional District & Sessions Judge, I, Saran at Chapra affirming the judgment and decree dated 31.8.1994 passed by learned Munsif, I, Saran in Title Suit no.45 of 1993 dismissing the said suit. ---- Tej Narain Singh Son of Rameshwar Singh, resident of Husse Chapra, P.S.Chapra Town, District-Saran. --Plaintiff-Appellant-Appellant. Versus 1. The State of Bihar through Collector, Saran 2. S.D.O.Sadar Saran, Chapra. 3. Circle Officer, Chapra Sadar Anchal. -- Defendants 1st Party- Respondent-Respondent. 4. Nagar Palika Chapra, Saran through Executive Officer, Nagarpalika Chowk, Chapra. 5. Surendra Prasad Chaurasia, son of Sakaldhari Prasad Chaurasia, Resident of Village-Rushy Chapra, P.S.Chapra Town, P.O.Chapra, District- Saran. --Defendant 3rd Set/Respondent/Respondent. ---- For the appellant : M/s. Abhay Kumar Singh No.1 Brajesh Kumar & Parmatma Singh, Advocates For respondents No.1 to 3 : Mr. A.P.Jittu, Standing Counsel For respondent No.4 : Mr. Arbind Kumar Pandey, Advocate For respondent No.5 :Mr. Joytendra Pratap Singh, Advocate ---- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN ---- S. N. Hussain, J. This second appeal has been filed by the sole plaintiff-appellant- appellant against the judgments and decree of both the learned courts below. 2. This matter arises out of Title Suit No.45 of 1993 which was filed by the plaintiff-appellant for the following reliefs:- (a) Permanent injunction in favour of plaintiff against defendants restraining them from demolishing plaintiff‟s wall and from removing plaintiff‟s alleged encroachment from Schedule II land in compliance of order dated 08.02.1993 passed by the S.D.O. in Public Encroachment Case No.01 of 1993 (8/1994). (b) Decree of cost of suit from defendants. (c) Any other relief to which plaintiff is found entitled. 3. The claim of the plaintiff was that Plot No.452 measuring 1 katha 15 dhur of village Hussepur within Chapra Municipality in the District of Saran belonged originally to one Prem Nath Singh, who sold southern 8 decimal - 2 - (33‟6”x16‟3”) of the said plot to Sarswati Devi by registered sale deed dated 13.06.1985 (Ext.3) in which 3‟6” wide strip 8‟ in length East to West was left for Raasta and since then she came in exclusive possession of her purchased land as absolute owner thereof and started construction of her house and reached up to the plinth of the said land but in the meantime she fell in need of money and sold the said land with the said construction to the plaintiff by registered sale deed dated 02.09.1986 (Ext.3/A), whereafter plaintiff came in possession thereof and constructed his double storeyed house from the existing plinth and got his name mutated and was paying municipal taxes. 4. The further claim of the plaintiff was that much after his sale to Saraswati Devi by registered sale deed dated 13.06.1985 (Ext.3), the original owner of Plot No.452, namely Prem Nath Singh sold northern 10 decimal of the said plot to defendant no.5 Surendra Prasad Chauraseya by registered deed dated 25.06.1985 (Ext.D), whereafter the said purchaser came in possession of the said purchased land and constructed his house thereon. The plaintiff also claimed that the said house of defendant no.5 is adjacent northeast to the plaintiff‟s house and hence defendant no.5 wanted to open a raasta through the land of the plaintiff and taking undue advantage of his position as journalist and his proximity and influence over government authorities he managed to obtain favourable orders in proceedings under Section 144 as well as under Section 107 of the Code of Criminal Procedure and thereafter defendant no.5 got Public Land Encroachment Case No.01 of 1993 initiated against the plaintiff with respect to his suit land in which S.D.O. Sadar passed order dated 08.02.1993 directing the Circle Officer to remove the encroachment allegedly made by the plaintiff on a public raasta. The plaintiff asserted that the said land is not a public raasta rather it is his private land purchased from the original owner through a registered deed and hence the authorities concerned had no jurisdiction to pass their aforesaid orders or to remove the construction of the plaintiff. - 3 - 5. On the other hand the claim of defendant no.5 Surendra Prasad Chauraseya was that all the persons of the area had left some of their lands for construction of 8 ft wide raasta which is also proved by the recitals of the sale deed of plaintiff‟s vender (Ext.3) whereafter the Municipality acquired the said lands for constructing concrete path thereon, but in spite of that the plaintiff included the said 3 ½ ft raasta, which was to be left by him, while constructing his house. 6. Out of the remaining defendants only defendant no.3, namely S.D.O. appeared in the suit and claimed that the plaintiff had encroached the public land and hence Public Land Encroachment Proceeding was initiated against him, but against the order of removal of encroachment, he ought to have moved before the appellate authority under Section 11 of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as „the Act‟ for the sake of brevity) but instead of that the plaintiff filed the instant suit which was barred under Section 16 of the Act. It was also claimed that the order passed in the encroachment case was legal and valid and was passed after full consideration of the materials on record and the respective claims of the parties and after getting the matter duly enquired. It was also claimed that the suit was also bad due to absence of any notice under Section 80 of the Code of Civil Procedure and Section 377 of the Municipal Act. 7. Considering the respective pleadings of the parties, learned trial court framed the following issues for deciding the title suit:- (i) Whether suit is maintainable? (ii) Whether plaintiff has any cause of action for the suit? (iii) Whether suit is not maintainable under Section 80 of the Code of Civil Procedure and Section 377 of Municipal Act? (iv) Whether jurisdiction of civil court is barred under Bihar Land Encroachment Act? (v) Whether the Raasta in dispute is public or private and whether the plaintiff has made any encroachment on the Raasta? (vi) Whether plaintiff is entitled to the reliefs claimed? 8. On the aforesaid issues evidence were led and arguments were made on behalf of both the parties, whereafter the learned Munsif-I, Chapra dismissed the - 4 - title suit on contest with cost vide his judgment and decree dated 31.08.1994 after arriving at the following findings:- (a) Suit land is a public land and the plaintiff has encroached it. (b) Civil Court cannot issue permanent injunction against an order passed under the Act. (c) Plaintiff has got no cause of action for the suit which is not maintainable. (d) Plaintiff is not entitled to any relief as neither he has a prima facie case, nor balance of convenience is in his favour nor even he is going to suffer any irreparable loss. 9. Against the aforesaid judgment and decree of the learned trial court, the plaintiff filed Title Appeal No.94 of 1994 and after hearing the pleadings of the parties the learned court of appeal below formulated the following points for deciding the title appeal:- (i) Whether the disputed land is public land or private land of the plaintiff? (ii) Whether the plaintiff has encroached the disputed land? (iii)Whether the suit is hit by Section 16 of Bihar Public Land Encroachment Act? 10. After hearing the arguments of the parties as well as the evidence relied upon by them, the learned Additional District Judge, I, Saran dismissed the title appeal on contest with cost by his judgment and decree dated 13.02.1997 after arriving at the following findings:- (a) Ext.E the application of general people proves that the residents of the mohalla including defendant no.5 had voluntarily contributed lands for 8 feet wide public path and had voluntarily surrendered it to municipality for making it concrete. (b) Ext.G letter of the authorities shows that the said path had been acquired by the municipality. (c) 8 feet wide path which has emerged from main municipal road and goes up to the house of the plaintiff is a public path which has been acquired - 5 - by Municipality vide resolution dated 09.07.1987 and on this path Municipality has already constructed pucca concrete road and a pucca drain upto the house of plaintiff. (d) There is clear recital in plaintiff‟s sale deed (Ext.3/A) that 3 ft 6 inch land has been left for the 8 ft wide path. (e) There is no doubt that the disputed land which is included in the 8 ft wide path is public land meant for public use. (f) Plaintiff has not produced any sanctioned site plan for construction of his house. (g) 3 ½ wide public land has been encroached by the plaintiff although it was for public use. (h) The order passed by an authority under the Act cannot be challenged in civil court. 11. Against the aforesaid judgments and decree of the learned courts below, the plaintiff filed the instant second appeal, which was admitted on 17.03.1998 on the submissions of learned counsel for the appellant that the lower appellate court has committed an error of record while arriving at the finding with respect to the report of the pleader commissioner and formulated the following substantial question of law:- “Whether this finding is contrary to the Pleader Commissioner‟s report?” 12. On the aforesaid substantial question of law, learned counsel for the appellant submitted that there is no dispute with regard to sale deeds (Ext.-3 and 3/A) by which the original owner sold the suit land to plaintiff‟s vendor who subsequently sold it to the plaintiff, whereafter the plaintiff constructed his house on the land so purchased. He further submitted that Ext.-5, the report of the Pleader Commissioner (P.W.18) dated 04.03.1994 as well as the map (Ext.4) attached to the report clearly showed that plaintiff had constructed his house on an area which was much less than the area purchased by him and hence there was no question of any encroachment and that defendant no.5 had no concern with Ram Ekbal Singh - 6 - and Prof. Kamalakant Pathak as the land with house of defendant no.5 was to the north eastern portion of the house of the plaintiff, whereas the aforesaid other two persons had their house on the southeastern boundary of the plaintiff‟s house. He also averred that all the plaintiff‟s witnesses consistently stated that no encroachment was made by the plaintiff and he had made construction over his purchased land. He also stated that the land in suit was a private land and no proceeding with respect to the encroachment could legally be initiated with respect to suit land and it was only at the instance of defendant no.5, who is a journalist, that plaintiff is being harassed, although the plaintiff had already left more than 3 1/2 feet of land. 13. On the other hand, learned counsel for respondent no.5 submitted that all the people of the locality had left specific lands for construction of 8 ft. wide Raasta which is apparent from Ext.-E, the application filed by the local persons as well as Ext.-3 and 3/A, the sale deeds on which the plaintiff has based his claim, whereafter Chapra Municipality acquired the said land and constructed concrete path with drain thereon and hence the said Raasta, including the suit land, is a public land and the encroachment case initiated by the authorities concerned was legal and valid. He also averred that in the said circumstances this suit is with respect to public land encroached by the plaintiff for removal of which authorities under the Act had already passed their orders and, thus, suit was also barred under the provision of the Act. It was further stated that both the learned courts below after considering in detail the pleadings and evidence of the parties came to the concurrent findings of the fact that the plaintiff had encroached the suit land which is a public raasta. 14. Learned Standing Counsel appearing for respondents no.1 to 3 and learned counsel appearing for respondent no.4 adopted the arguments of respondent no.5 and also relied upon the report of the Pleader Commissioner, Ext.-5. 15. Considering the arguments of learned counsel for the parties as well as the evidence produced by the parties and the substantial question of law - 7 - formulated by this court with regard to report of the Pleader Commissioner (Ext.- 5), it is quite apparent that admittedly the plaintiff had purchased the land including suit land vide registered sale deed dated 02.09.1986 Ext.3/A from Sarswati Devi who had purchased it from the original owner Prem Nath Singh by registered sale deed dated 31.06.1995, Ext.-3 and in both the deeds it had been mentioned that the purchaser had to leave 3 ½ wide land towards east of the land purchased. Hence, it is quite apparent that according to the term of his purchase, the plaintiff was duty bound to leave the said land for public raasta. In addition to that all the persons of the locality had left specific land for the purposes of raasta which started from the main municipal road up till the house of the plaintiff, whereafter the municipality acquired it and made concrete path with drain uptill the house of the plaintiff. Hence, it is quite apparent that said raasta was a public land for the use of all the persons of the locality. 16. The report (Ext.-5) and the deposition (P.W.18) of the Pleader Commissioner show that the house of the plaintiff was constructed on an area which is less than the area purchased by him, but the plaintiff has failed to show by any material whatsoever that he had left 3 ½ strip of land on the eastern side as he could not produce even the site plan for construction of a house. Furthermore, the map (Ext-4) attached to the said report (Ext-5) of the Pleader Commissioner clearly shows that there was house of defendant no.5 and Ramekbal Singh towards east of the house of the plaintiff, but no 3 ½ land is shown to have been left on the eastern side by the plaintiff. Thus, it is quite apparent from the report and the map (Exts.-4 and 5) of the Pleader Commissioner itself that no land was left by the plaintiff on the eastern side of his house towards 8 feet public path not only violating the term of his own deed of purchase, but also encroaching the public land left for the pucca raasta. In the said circumstances, the finding of the lower appellate court is not contrary to the report of the Pleader Commissioner, rather it is found to be in consonance with the same. - 8 - 17. Apart from the aforesaid issue, it is apparent from the materials on record that in the year 1985 (Ext.-3 series) itself the people of the locality had decided to give some portions of their land for public raasta and in the year 1986 (Ext-E) they had sent their applications to the Municipality for the said purpose on the basis of which the said lands, including the suit land, was acquired (Ext.-G/1) by Chapra Municipality in the year 1988, whereafter pucca raasta with pucca Nali was constructed by the municipality from the main municipal road uptill the house of the plaintiff for the use of the public. In the said circumstances, when the plaintiff started construction over the suit land, the authorities concerned were quite justified in initiating Encroachment Case no.01 of 1993-94 against the plaintiff with respect to the suit land rightly treating it as public land and finally allowed the encroachment case vide order dated 03.12.1993 (Ext.-H/2) directing removal of the encroachment. It transpires that thereafter the plaintiff filed Encroachment Appeal No.22 of 1993 which was also dismissed on 25.01.1994 (Ext.H/1). This court does not find any illegality in the said orders of the authorities concerned which attained finality as there is nothing to show that they were challenged before any higher authority. However, in any view of the matter, the said orders, having been passed by an authority under the Act cannot be challenged in a civil court due to the specific bar provided in the Act. 18. On the basis of the aforesaid facts and findings, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor could the appellant substantiate the question raised by him and, accordingly, this second appeal is dismissed. But in the facts and circumstances of the case, there will be no order as to cost. ( S. N. Hussain, J.) Patna High Court, Dated, the 15th April, 2009 N.A.F.R. Sunil/