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Judgment
Gautam Kumar Choudhary, J
Heard, learned counsel for the parties.
This Second Appeal has been filed by the plaintiff against the Judgment of reversal.
Plaintiff filed the suit for declaration of right, title and interest over the suit property measuring an area of 08 decimals under Khata No.298 detailed in Schedule A of the plaint.
Plaintiff claim title over the suit land on the basis of a registered sale deed executed by Sheikh Kurban vide registered sale deed dated 01.12.1973. Plaintiff’s father came as a refugee from Pakistant in 1946-47 and with consent of Seikh Kuban started a hotel business. There was an agreement of sale and later registered sale deed was executed.The State has been impleaded as party through the Deputy Commissioner.
Further plaintiff/respondent moved against the said order before the Additional Collector, Dhanbad in M.R.A. No.30A/79 and the same was allowed vide order dated 23.02.1985 confirming the title of the plaintiff over the land. Despite the order, SDO, Dhanbad without any legal authority passed the order of demolition of the said structure on 25.06.1987.
Case of the defendant(s) is that suit plot in the last survey record of rights has been recorded as Keshere-Hind belonging to the Central Government. Both the plots are part and parcel of G.T Road, and no one has right to construct any structure over the plot. In the last survey settlement possession of Robinin Bibi has been shown but it did not mean that it belonged to her and she had no right title over the suit land. Executive Engineer (P.W.D., National Highway Division) of the State intended to demolish the construction over the land against which, the plaintiff moved the High Court of Judicature at Patna in CWJC No.1903 of 1975 which was disposed of vide order dated 17.09.1975 with an observation that “no action can be taken against the petitioner in the shape of forcible demolition till disposal of the B.P.L.E. Case No.36 of 1974 was instituted against the plaintiff for illegal encroachment over the land of NHAI by the plaintiff”.
On the basis of the pleadings of the parties, the following main issues were framed :-
(i) Is there any course of action for the present suit?
(ii) Is the suit barred by limitation and under the principles of waiver, estoppel and acquiescence?
(iii) Is the suit as framed legally maintainable?
(iv) If any other relief or reliefs to which plaintiff is entitled?
Learned Trial Court decreed the suit. However, learned first appellate court has reversed the judgment against which, the instant Second Appeal has been preferred.
The instant Second Appeal has been admitted to be heard on the following substantial questions of law :-
(i) Whether the appellate court committed error of law in not holding that the subsequent so called proceeding initiated by the S.D.O. is barred by the principles of res judicata?
(ii) Whether the S.D.O. has got any authority to initiate any separate summary proceeding under the law or he is to proceed if further encroachment is there from the side of the appellant in the meantime?
It is argued by learned counsel for the appellant that the S.D.O. has no authority to initiate encroach proceeding againt the appellant in view of the fact that defendant no. 2 failed to get order in his favour in MRA No. 30A/1979.
Learned counsel for the State has submitted that this is a case where declaration of title and permanent injunction has been sought for the suit property which was a Central Government property. The Central Government was not impleaded as a party which was the necessary party in the suit and in any case, the burden of proof is on the plaintiff under Section 101 of the Evidence Act to plead and prove his title over the suit property, though no evidence has been adduced on behalf of the plaintiff to show that the vender of the plaintiff had valid right, title and interest. The mere execution of the sale deed (Ext. 8 & 8/A) cannot confer title. Furthermore, there was no documentary evidence of the plaintiff or his vender to have possession on the said land.
Having considered the submission advanced on behalf of both sides, I find much force in the argument advanced on behalf of the State that the plaintiff has failed to plead and prove the title over the suit property. The order passed by the S.D.O. is not germane for adjudication of title.
I do not find any infirmity in the order passed by learned First Appellate Court. The substantial question of law is answered, accordingly.
Second Appeal is dismissed.