IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.58 of 2005 MOSTT.BIMLA KUER & ORS Versus STATE OF BIHAR & ORS ----------- 9/ 22.07.2008 The prayer for adjournment sought on behalf of the appellant is rejected. The learned counsel for the appellant Mr. Rewti Kant Raman has submitted that the structure existing on the suit land has been demolished. Learned Government Advocate Sri Anil Kumar Jha is ready to argue the case. The plaintiff Sri Ramashray Singh who is appellant here, who has earlier filed this appeal, but now has been substituted on account of his death by his six legal heirs namely, Mostt. Bimla Kuer and five others, had filed a Title Suit bearing no.359 of 2002 against the State of Bihar and other for declaration of right, title and possession over the disputed land for which, subsequently, he filed a petition under Order 39 Rule 1 and 2 of the CPC, to restrain the defendants from demolishing the structure existing on the suit land. The State of Bihar had appeared and filed show cause and ultimately the petition for injunction filed on behalf of the appellant- plaintiff was dismissed. It was pleaded on behalf of the plaintiff-appellant in the court below that there existed a residential house over the disputed land from the day of revisional survey, in which plaintiff-appellant have been residing with his family members and except that house no other house is in possession of the plaintiff-appellant. But, State of - 2 - Bihar was bent upon to demolish that house by bringing an encroachment proceeding. The claim of continued possession right from 1962 was made and as such it was pleaded that balance of convenience also tilted in favour of the plaintiff-appellant and also that by such demolition of the structure the appellant-plaintiff would sustain irreparable loss. On the other hand, it was pleaded on behalf of the defendants that cousin of plaintiff Ram Govind Singh and Ram Singh had filed a Title Suit bearing no. 303 of 2002 in respect of disputed plot no. 133 and 134 in the court of Munsif, Bhabhua, which was dismissed by the learned Munsif, Bhabhua. The disputed land has been recorded in the cadestral survey as “Gairmazarua Aam Anabad” and during the Chakbandi proceeding, khatian was prepared as “Aam Anabad Sarva Sadharan” and so encroachment proceeding was initiated in which the plaintiff-appellant was noticed to submit his claim paper and show cause. Moreover, it was argued that no civil suit is maintainable in respect of any order made in course of survey proceeding. Now, in course of hearing, it has been pointed out by the learned Government Advocate Sri Anil Kumar Jha, that as a matter of fact, the structure for which title suit in question was filed has already been removed on 2.11.2004. So, no purpose will be served by passing any order in respect of injunction petition, which was dismissed by the court below. Although, counter affidavit is said to have filed but the - 3 - same has not been on record. Learned counsel for the State has furnished copy of the counter affidavit, which is available with him and he supported contents made therein in his argument. In the facts and circumstances, the court below is directed to dispose of the suit on merit and in case it is found that the plaintiff- appellant has got a valid cause of action and right, title over the disputed land, then the matter shall remain open for consideration by passing an order so that the plaintiff-appellant should be adequately compensated. With the aforesaid directions, this appeal stands dismissed as it has become infructuous. Sanjeet (Subash Chandra Jha, J.)