IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.64 of 2010 SHIVNESHWARI PANDIT Versus STATE OF BIHAR & ORS ----------- For the petitioner: Mr. Harish Kumar, Adv. For the State: Mr. Ajay Mishra, A.P.P. For the Opposite Party Nos. 2 and 3 : Mr. Anirudh Kr. Sinha, Adv. ------------- 4 17.01.2011 This is an application for leave to appeal against the judgment dated 31.5.2010 of the S.D.J.M., Madhepura as passed in Complaint Case No. 339 of 2001/Tr. No. 605 of 2010 whereby the O.P. Nos. 2 and 3 were tried on the charges under Sections 323, 427, 379 and 147 of the Indian Penal Code and they were acquitted of the charges. The complainant’s case was that he had purchased 16 dhurs and 3 kathas of land respectively from Khesra No. 3765 and 3763 in Ward No. 5 at Madhepura and thereafter, he had constructed his house over the land. His further case was that the two O.Ps. came over the land on the basis of the decree as was passed in their favour and against the petitioner in Title Suit No.06 of 1982 over 12 dhurs of land in plot No.3555 which is situated adjacent to petitioner/complainant’s land and the decree being for handing over possession by the petitioner/complainant to the decree holder i.e. O.P. Nos. 2 and 3 after removal of the construction over the suit land but the O.P. Nos. 1 and 2 instead of getting possession over the suit land under the said T.S. No. 06 of 1982 went over the petitioner/complainant’s land and they demolished his house over his (petitioner/complainant’s) land. 2 The learned trial court has considered that the said Title Suit No. 06 of 1982 had been filed by the O.Ps. 2 and 3 and their father Surendra Nath Ghosh (now deceased) for declaration of title and obtaining vacant possession of 12 dhurs of land appertaining to plot No.3555 which is situated adjacent to complainant’s land and the claim of the O.P. Nos. 1 and 2 in that suit was that the petitioner/complaint who happened to be the defendant in the suit, had encroached upon the 5 dhurs of the suit land and they had made unauthorized construction and the prayer was for declaration of Title and restoring possession to the plaintiff/O.P. Nos. 2 and 3 after removal of unauthorized construction over the land. The learned trial court considered Ext.E, (the Pleader Commissioner’s report) which was submitted in the said Title Suit and the said report had mentioned that some Gohal and Sahan like construction was found over the suit land. Ext. ‘H’ was the decree passed by the Court which mentions that the vacant possession of the suit land be given to the plaintiff/O.P. Nos. 2 and 3 after demolishing unauthorized construction over the suit land. Ext.’J’ is the report of the Nazir which mentions that vacant possession of the suit land was given to the decree holder/O.P. Nos. 1 and 2 in execution of the decree. The learned trial court on consideration of the above materials, found that the construction was demolished from the suit land in execution of the decree passed by the Civil Court in the said Title Suit No. 06 of 1982. The learned trial court did not feel satisfied about plaintiff’s claim that the demolition had been done on the 3 complainant’s land and on this finding, the judgment of acquittal was recorded. The learned counsel for the petitioner/complainant submitted that the demolished construction was not on the suit land but it was on the complainant’s land which was situated adjacent to the suit land. In the perception as put forward in the case of the petitioner/complainant, one may visualize that the construction which was demolished was situated on the land beyond the 12 dhurs of land as mentioned in the decree. In this context, learned counsel for the O.Ps. pointed out the evidence of P.W.1 at para-8 who stated that the house which was demolished was situated at 10-12 dhurs of land. Thus, the demolished construction was on 10-12 dhurs of land which was the area under the decree. Learned counsel for the O.P. also submitted that the complainant’s claim was that the demolished house had been constructed 15 years ago but the P.W.2 at para 6 has stated that the construction has been made 5-6 months prior to the year 2001 and it was pointed out by the learned counsel that the decree had been passed in the year 2000. Therefore, it was argued that the complainant’s claim is falsified that the house had been constructed 15 years ago and it was submitted that the construction had been made during pendency of the suit or after passing of the decree and the decree had rightly been executed by demolishing unauthorized construction over the suit land. Learned counsel for the O.Ps. also submitted that the complainant says about demolition of construction over his land but any boundary of the house which is said to have been demolished, has not been mentioned 4 in the complaint petition and, thus, the site of the P.O. has also not been fixed beyond doubt. Thus hearing both sides and considering as above, I do not find any perversity or illegality in the order of acquittal as passed by the learned trial court. In the result, the application is dismissed. (C. M. Prasad, J.) Ravi/-