Ashok Prasad Sah vs Most. Shanti Devi And Ors

Th present writ petition has been filed for quashing the order dated 12.05.2010, passed by Sub-Judge-I, Supaul in Title Suit no. 1 of 2007, whereby and whereunder the prayer of the petitioner for repairing of the house situated over the suit land, has been rejected.

The brief facts of the case are that the petitioner herein, has filed a title suit bearing T.S. no. 1 of 2007 before the Court of Sub-Judge-I, Supaul for declaration of his right, title over the suit land mentioned in Schedule-I of the plaint. It has been further prayed to cancel the sale deed executed by the respondent no. 1 in favour of respondent no. 7. It has been stated that during the pendency of the suit, an Advocate-Commissioner was appointed to verify the status of the suit land who submitted a report dated 03.04.2007, from which it is apparent that there is a residential house of the plaintiff-petitioner over the suit land and a tea shop is also situated over the same, apart from some vacant land. Thereafter, the petitioner, on the basis of the said report of the Advocate-Commissioner as also considering the fact that part of the house, in question has been damaged, filed a petition dated 29.04.2010 with a prayer to permit him to repair the house, since the respondents were objecting to the same, however the trial court without appreciating the facts and circumstances, has rejected the prayer of the petitioner for repairing the house in question by the impugned order dated 12.05.2010. The learned counsel for the petitioner has submitted that without any evidence, the lower court below has come to the conclusion that the petitioner has got no title and possession over a part of the suit land, hence such finding would prejudice the claim of the plaintiff-petitioner herein. It is further submitted that in case, permission for repairing is not granted, the plaintiff-petitioner would suffer irreparable loss.

I have heard the learned counsel for the parties and perused the materials on record. This Court finds that about 09 years have elapsed since the filing of the present petition, hence, apparently the relevance of the prayer of the petitioner for granting permission to repair his house, has become redundant, especially in view of the fact that the learned counsel for the petitioner, upon a query being made, could not state about the actual condition of the house in question as on date, nonetheless, upon examining the materials on record, it is apparent from the report of the Advocate-Commissioner dated 03.04.2007, that the disputed land consists of one tea-snacks shop and two rooms in which the petitioner is staying with his family members. It has been further submitted by the said Advocate-Commissioner that the walls are of bricks and there is a "pucca" structure, hence the claim of the petitioner in his petition dated 29.04.2010 that the petitioner wants to repair the thatched roof (Chhapar) standing on bamboo poles, is not correct, as has also been noted by the learned court below in the impugned order dated 12.05.2010. Moreover, there is a dispute as to whether the land in question is 03 dhur or 08 dhur, inasmuch as it has been stated by the defendants-respondents that the plaintiff-petitioner has purchased only 03 dhur land. This Court further finds that since there is a dispute with regard to the right/ title of the plaintiff-petitioner in respect of the suit land and the learned court below is yet to adjudicate as to whether the plaintiff-petitioner has right/ title over 03 dhur land or 08 dhur land of the suit land or over none, coupled with the fact that the claim of the plaintiff-petitioner in the petition dated 29.04.2010 is inconsistent with his pleadings in the plaint as also is inconsistent with the report submitted by the Advocate-Commissioner dated 03.04.2007, which has not ever been challenged by the petitioner herein, I find that it would not be appropriate to make any declaration which would prejudice rights of the respective parties. Moreover, this Court finds that the Advocate-Commissioner, in his report dated 03.04.2007 has not stated about any structure of the residential house of the plaintiff-petitioner being in a dilapidated condition or requiring repair and since the said report has not been challenged by the plaintiff-petitioner, I do not find that the petitioner has made out any case so as to warrant interference in the impugned order dated 12.05.2010, passed by Sub-Judge-I, Supaul in Title Suit no. 1 of 2007, however it is clarified that the said order dated 12.05.2010 would not be construed to have rendered any opinion on the merits of the case with regard to the right and contentions of the respective parties and would also not prejudice the case of the plaintiff-petitioner during the course of trial.

Having regard to the facts and circumstances of the case and for the reasons mentioned hereinabove, I do not find any merit in the present writ petition, accordingly the same stands dismissed.