Smt Kalindi Devi v. The State of Bihar & Ors.

5 Smt Tripti Sen Gupta, wife of late J M Sen Gupta 6 Devashish Sen Gupta 7 Subhashish Sen Gupta 8 Sadashish Sen Gupta 9 Arunashish Sen Gupta, 6 to 9 are sons of late J M Sen Gupta and 5 to 9 are residents of Mohalla – Gaighat, PS – Alamganj, District – Patna. At present Shri Krishna Nagar, Road No 17/B, P S – Budha Colony, District - Patna - Respondents ----------- 28

21.04.2009 Petitioner, in this case, challenges the order passed in Appeal Case No 3 of 1995 by the appellate authority arising out of Eviction Case No 34 of 1994 as instituted by the Bihar State Housing Board under the Act for this purpose. Petitioner’s grievance is that from plot No 1132 which was of 10 decimals, in 1978 he purchased by a registered sale deed 8 decimals from his vendor. The remaining 2 decimals had been aquired by the Housing Board in the year, 1956. Adjacent to this plot were substantial lands of the Housing Board which had been acquired in 1956 and thereabout. The Housing Board had carved out plots and had made settlement of a contiguous plot of land so carved out with late J M Sen Gupta. Adjacent to their plot was this 2 decimals of unallotted land. Being adjacent to the land of Shri J M Sen 2 Gupta, he applied to the Housing Board for settlement of that land and ultimately in 1981 that land was settled in favour of J M Sen Gupta. When the Engineers of the Housing Board tried to give possession of the said 2 decimals of land to the said J M Sen Gupta, it was resisted by the writ petitioner on the ground that the property had been in possession of the writ petitioner from the date of its purchase and that was not acquired by the Housing Board. It may be noted that petitioner’s case is not that the entire plot 1132 was purchased by her. She herself admits that 2 decimals of that plot fell within the acquisition as done by the Housing Board. The petitioner having resisted the giving of possession to J M Sen Gupta, eviction proceeding being Proceeding No 34 of 1994 was started ultimately by the Housing Board. These eviction proceedings unfortunately ended against the Housing Board, inter alia, on the ground that the Housing Board was unable to bring on record the notification of land acquisition and the plans associated therewith. Being aggrieved by this, Housing Board filed an appeal before the statutory appellate authority being Appeal No 3 of 1995 which was disposed of by order dated 09.03.1998 and the petitioner is aggrieved by that order. By that order, the appellate authority has, in my view, issued correct directions. The reasons for which I will indicate later. The petitioner contends that the eviction proceedings were challenged by her before this Court in CWJC No 1342 of 1982 which was permitted to be withdrawn by order dated 22.04.1982 (Annexure-1). The order notes that the questions raised by the petitioner in the writ application are better to be examined by competent 3 Civil Court and, accordingly, writ petition was not entertained and permitted to be withdrawn. This is no judgment. It appears petitioner, being inspired by these observations, filed Title Suit No 154 of 1984 for declaration of title and for permanent injunction against the Housing Board and its officials and the heirs of the said J M Sen Gupta from interfering with her possession in the Court of Sub Judge I, Patna. Housing Board challenged the maintainability thereof in terms of Sections 59 and 62 of the Bihar State Housing Board Act. The trial Court rejected the contention. The heirs of the said J M Sen Gupta filed a civil revision before this Court being Civil Revision No 1907 of 1997 which was dismissed on 01.04.1998 (Annexure-3) holding that where questions of title were concerned, the jurisdiction of the Civil Court cannot be ousted. Now we come back to the order of the appellate authority which is impugned. The order gave direction to the Housing Board and the State of Bihar to go on the site and measure and demarcate the properties. On facts, there is no dispute as between the petitioner or the Housing Board or the heirs of the said J M Sen Gupta, namely, Tripti Sen Gupta and her sons. The case is consistent that 2 decimals of said plot No 1132 were duly acquired. The question is where those 2 decimals in that plot are. That can only be decided by physical demarcation and not in a Court far from the land itself. The petitioner contends that the question involves question of title and as has been held by this Court, the suit was maintainable. Therefore, the eviction proceedings should not continue. There cannot be a 4 demarcation as directed by the appellate authority in the eviction proceedings. In my view, the argument is misconceived. Whether a person is an encroacher or not is a solitary question to be decided. In my view, there is no question of title involved inasmuch as, as noted above, parties are consistent in their stand that only 2 decimals out of the total plot area of 10 decimals of plot No 1132 was acquired. It has got to be measured as to where those 2 decimals of land are situated. Thus, I do not find any error in the order of the appellate authority. In fact if the order was properly complied with and implemented would have saved the parties from trouble and wastage of time and money and would have settled the things once and for all amongst parties. All these litigations would have been avoided. I, therefore, find no merit in this application. It is, accordingly, dismissed. M.E.H./ (Navaniti Prasad Singh)