IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 262 of 2004
............
Amulya Lakra ........Appellant
Versus
Tarcius Tette & Others .........Respondents
CORAM: THE HON'BLE MR. JUSTICE R.K. MERATHIA
For the Appellant : Mr. Manoj Tandon, Advocate
-------
C.A.V. On 4.3.2009 Delivered on 24/03/2009
4/24 /03/2009 This appeal has been filed against the judgement and decree dated
31.1.2004
, passed by learned Additional District Judge, Simdega in Title Appeal
No. 4 of 1995 affirming the judgment and decree dated 26.11.1994, passed by
learned Munsif, Simdega in Title Suit No. 33/85.
2. Mr. Tandon, appearing for the appellant, submitted that the written
statement filed by the vendor of the parties on 12.12.1989 was wrongly ignored
by the learned courts below; that P.W.D. should have been made party and that
the plaintiff-respondent could have filed suit for declaration that the sale deed
dated 7.7.1980 executed in favour of the appellant was invalid but such suit
would have been barred by limitation.
3. The said submissions of Mr. Tandon cannto be accepted for the
following reasons. The plaintiff-respondent no. 1 filed this suit for declaration of
his possession over the suit land described in the scheduled of the plaint and for
further declaration that the possession of defendant no. 1-appellant, over 5
decimals of the suit lands was illegal and therefore defendant no. 1 should be
removed from 5 decimals of land. The plaintiff further prayed for issuance of
permanent injunction etc. with regard to the said encroached land.
4. After considering the pleadings and the evidences on record, the
trial court found that the plaintiff in paragraphs 2 and 4 of the plaint stated that
P.W.D. acquired 25 decimals of land, out of plot no. 588, which position was
admitted by the vendor of the parties-defendant no. 2 in his first written
statement filed on 26.8.1986 vide para 2, but in the subsequent written statement
filed on 12.12.1989 the said vendor denied acquisition of any area of land by
P.W.D. out of plot no. 588. The subsequent written statement was rightly ignored
by the trial court as no ground was made out for filing the same and it was filed
without court’s permission. Moreover, it was contrary to the written statement
filed by the defendant no. 1-appellant, in which he said that only 23 decimals of
land were acquired by P.W.D. The trial court also rightly held that it was for
2
defendant no. 1-appellant to establish that only 23 decimals of land were
acquired by P.W.D. as asserted by him but he failed to discharge such onus. It
was found that all the parties admitted that the lands were acquired by the
P.W.D. It was then rightly held that 25 decimals of land were acquired by the
P.W.D. In such circumstances, the suit could not fail due to non-impleadment of
P.W.D. as party.
5. It was further found that Ext-1, the sale deed under which the
plaintiff-respondent no. 1 purchased a portion of plot no. 588, clearly mentioned
the boundary and other description of the purchased land but in the subsequent
sale deed ( Ext-A) made in favour of the appellant by the same vendor, no
boundary of the land purchased was given. It is true that there is some mistake
in paragraph 11 of the trial court judgment with regard to calculation of land but
the same are typographical and inconsequential so far as the dispute regarding
encroachment over 5 decimals is concerned. It was rightly found that the vendor-
defendant no. 2 admitted the plaintiff’s statement that the appellant had
encroached upon 5 decimals of land belonging to the plaintiff. The trial court
accordingly decreed the suit.
6. The appellant filed appeal. The lower appellate court considered
the respective cases of the parties and the evidences brought on the record. The
lower appellate court affirmed the findings of the trial court. It also found that in
the sale deed ( Ext-1) full description of the lands purchased with boundary from
all side was given; and that the case of the plaintiff found support from the
evidence of P.W-4-the Pleader Commissioner and his report-Ext-4, whereas no
boundary was mentioned in the sale deed of the appellant. In view of the nature
of controversies between the parties, it was not necessary for the plaintiff-
appellant to challenge the sale deed-Ext.-A, under which the appellant
purchased land from the vendor of the plaintiff. The suit involved the dispute
with regard to encroachment over 5 decimals of land only.
7. No grounds have been made out for interfering with the concurrent
findings of facts, noticed above. No substantial question of law is involved. This
Second Appeal is accordingly dismissed.
( R.K. Merathia, J)
Rakesh/