Ravinesh Kumar vs Union Bank Of India
2021 Latest Caselaw 4194 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.312 of 2021
                                           In
                     Civil Writ Jurisdiction Case No.9300 of 2020
     ======================================================

Inderjit Prasad Roy, Son of Late Ramnihora Roy, Resident of Village - Uttri Dhamaun, P.S. - Patory, District- Samastipur. ... ... Appellant.

Versus

1. The State of Bihar.

2. The District Magistrate Cum Collector, Samastipur.

3. The S.D.O., Patory.

4. The D.C.L.R., Patory.

5. The Circle Officer, Patory.

6. Rita Kumari, W/o Brajesh Kumar Nirala, the Panchayat Mukhiya of Uttri Dhamaun, P.S. - Patory, District- Samastipur.

... ... Respondents.

====================================================== Appearance :

For the Appellant : Mr. Upendra Kumar Singh, Advocate.

Mr. Arvind Kumar Sinha, Advocate.

For the State : Mr. Md. Khurshid Alam, AAG-12 For the Reespondent No.6 : Mr. Sanjeev Kumar Singh, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN and HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN)

Date : 21.08.2021

Heard learned counsel for the appellant, learned

AAG-12 for the State and learned counsel for the respondent

no.6 through video conference.

2. The present Intra-Court appeal has been preferred

against the judgment dated 25.03.2021 passed by a learned

Single Judge of this Court in C.W.J.C. No.9300 of 2020.

3. The appellant herein is the unsuccessful writ

petitioner. The facts giving rise to this appeal, in a narrow Patna High Court CWJC No.312 of 2021 dt.21-08-2021

compass, are that vide judgment of the learned Court below in

Title Suit No.1540 of 2006, 11 decimals of land in question was

recorded as "Anabad Bihar Sarkar" has been held to belong to

the appellant and, accordingly, his name was entered in the

khatiyan in place of "Anabad Bihar Sarkar" on 13.07.2013 but

the appellant is not in possession of the entire 11 decimals of

land. According to the appellant, some part of his land has been

encroached by the authorities who are constructing Panchayat

Bhawan at instance of the local Mukhiya, who is respondent

no.6 herein. It is further case of the appellant that his land has

been measured thrice with the intention to defeat his genuine

claim. There is a road adjacent to the plot/land in question

which has been assumed by the authorities to be part of 11

decimals of the land, which the petitioner has bought and

petitioner has nothing to do with the road and his 11 decimals

was not forming part of the road, as the road has a separate Plot

Number, bearing Plot No.3614, whereas the plot claimed by the

appellant is Plot No.3621.

4. Learned counsel for the appellant submits that

vide judgment dated 30.12.2010 passed in Title Suit No.1540 of

2006 by the learned Court below, 11 decimals of land in

question was recorded as "Anabad Bihar Sarkar" and, Patna High Court CWJC No.312 of 2021 dt.21-08-2021

accordingly, the name of the appellant was entered in the

khatiyan in place of "Anabad Bihar Sarkar" on 13.07.2013. The

appellant is in possession of the entire 11 decimals as part of his

land, which has been encroached by the respondent authorities,

who are constructing Panchayat Bhawan at the instance of local

Mukhiya. He further submits that the respondent authorities may

be directed to demarcate his entire 11 decimals of land which is

also in terms of the judgment in his favour in the Title Suit.

5. On the other hand, learned AAG-12 appearing on

behalf of respondent nos.1 to 5 submits that first of all the

judgment of the learned Court below is ex parte as it was

uncontested. He further submits that the road which is existing

for the last 80-85 years was repaired in the year 2002-03 and at

that time there was no objection from any party much less the

appellant. The appellant was not in possession of 11 decimals of

land, in fact, he was occupying only 8.75 decimals, whereas

2.25 decimals of land claimed by the appellant was part of the

road just adjacent to the plot. Thus, he submits that even if it is

assumed that the ownership of the land is with the appellant, but

once a road which is a public utility is in place for the last 80-85

years, it cannot be said that the State authorities have

encroached upon the land of the appellant. He has also informed Patna High Court CWJC No.312 of 2021 dt.21-08-2021

that an appeal has been preferred against the ex parte judgment

passed in favour of the appellant.

6. In the writ proceedings before this Court, both the

parties have filed their respective counter affidavit,

supplementary counter affidavit and rejoinder, which all are on

record and I have perused the same. The Circle Officer, Patori,

Samastipur in paragraph-13 of his counter affidavit has stated

that the name of the appellant has been entered in record of right

with respect to only 11 decimal of land, bearing Khata No.2643,

Plot No.3621 and the rest land of the same plot remains public

land (Gair Mazarua) vested in State Government. Further in

paragraph-14, he has stated that the Panchayat Bhawan is being

constructed on public land and no part of petitioner's land is

disturbed. In spite of the fact that the land has been measured

thrice, the petitioner is not satisfied with the measurement. In

paragraph-10 of the supplementary counter affidavit filed on

behalf of the respondent nos.2 to 5, it is stated that appellant has

been given 11 decimal of land in north west side of Khata

No.2643, Plot No.3621, which is clearly stated in khatiyan

record. But the appellant stopped the measurement on

05.02.2021 on the ground that 11 decimals of land be measured

from east side of Plot No.3621, which is not permissible. In Patna High Court CWJC No.312 of 2021 dt.21-08-2021

paragraph-11, it is stated that the appellant has neither obeyed

the direction of this Court nor has cooperated in the

measurement exercise so that his land be demarcated. It is also

stated in paragraph-12 that Panchayat Bhawan is being

constructed on Gair Mazarua land and no part of appellant's

land is being disturbed.

7. Having heard the parties and perused the record, it

appears that the appellant has been given 11 decimals of land in

north west side of Khata No.2643, Plot No.3621, which is

clearly stated in the order dated 30.12.2010 passed in Title Suit

No.1540 of 2006 and also khatiyan record. It is not in dispute

that the road in question is in existence for the last 80-85 years

and the brick soling of the road was done in the year 2002-03

and PCC road was constructed in the year 2007-08. Thus, at the

time of obtaining order dated 30.12.2010 passed in Title Suit

No.1540/2006, the appellant was very much aware of the

existence of the road, still he had chosen to get 11 decimals of

land in north west side of Khata No.2643, Plot No.3621. It is

also not in dispute that he has never objected to the construction

of the road or has bothered to get the correction made in the

order dated 30.12.2010 or entry in the khatiyan. In the third

supplementary affidavit filed before the Writ Court, the Patna High Court CWJC No.312 of 2021 dt.21-08-2021

appellant, apart from the other facts, has stated that 11 decimals

of his land be measured excluding "road, drain (Naala) and

electric transformer taking some parts of eastern side of Plot

No.3621 that is vacant.

8. Having considered the matter, in my considered

opinion, the facts giving rise to the writ petition as well as this

appeal are disputed questions of facts, which cannot be decided

in a summary proceeding as it requires adducing evidence after

examining witnesses. The learned Single Judge has rightly

observed that the parties have to get the matter resolved before

the Court below either by the petitioner by filing fresh Title Suit

seeking removal of the so-called encroachment or in the

alternative, in the appeal filed by the State in which all such

issues can be raised. In my view, a proceeding under Article 226

of the Constitution of India is not an appropriate forum to seek

relief, if such relief is based on disputed questions of fact of a

complex nature, which may require oral evidence to be taken, it

would not be appropriate to determine the issue in the writ

jurisdiction. The Hon'ble Supreme Court in plethora of

judgment has also held so. Some of which are in the case of The

Union of India and Ors. vs. Ghaus Mohammad, since

reported in AIR 1961 SC 1526, DLF Housing Construction Patna High Court CWJC No.312 of 2021 dt.21-08-2021

(P) Ltd. vs. Delhi Municipal Corporation and Ors. since

reported in AIR 1976 SC 386 and State of Rajasthan vs.

Bhawani Singh and Ors. since reported in 1993 suppl (1) SCC

9. This Court would also not like to enter into

adjudication of disputes relating to title, as it is of the opinion

that a proceeding under Article-226 of the Constitution of India

is not an appropriate proceeding for adjudication of dispute

relating to title.

10. In the result, this appeal merits no consideration

and is, accordingly, dismissed.

                                                                  (Anjani Kumar Sharan, J.)


                      (Vikash Jain, J.)           I agree.


                                                                  (Vikash Jain, J.)

Trivedi/-
AFR/NAFR                NAFR
CAV DATE                04.08.2021
Uploading Date          28.08.2021
Transmission Date       NA