Judgment

N.M.KASLIWAL, J.

(1) THIS appeal by grant of special leave is directed against a the judgment of the Patna High court dated 26/02/1981.

(2) THE appellant filed a suit for declaration, permanent injunction and recovery of possession of a single storeyed pucca house standing on plot Nos. 294, 295 and 296 in Village Koiridih, P.S. Baghmara in the district of Dhanbad. The case of the plaintiff was that he had purchased the plots by registered sale deed dated 10/03/1965 and thereafter constructed building on the plots. The building was let out to one Shri D.P. Gupta, Manager East Khas Bahiardih Colliery on a monthly rent of Rs. 100.00. Shri Gupta was transferred to Calcutta and as such he delivered the possession of the building to the plaintiff. The plaintiff alleged that he was the owner and in possession of the building at all material times. As the respondent was trying to take forcible possession of the property, he filed the aforementioned suit.

(3) THE respondent filed a written statement and its main defence was that the land in question was purchased and the building was constructed by the New Govindpur Colliery Company Private Limited from its own funds. The purchase was not made by the plaintiff from his own money and he did not construct the building from his own fund. Mr Gupta was not the tenant of the plaintiff but was a tenant of the Company who owned New Govindpur Colliery. It was further alleged that the right, title and interest of the owners of New Govindpur Colliery vested in the central government under the Coking Coal Mines (Nationalisation) Act, 1972 (hereinafter referred to as the Act). It was further alleged that the building in question is a mine as defined in Section 3(j)(vi) of the Act and as such it vested in the central government under Section 4 of the Act and subsequently in the respondent Bharat Coking Coal Limited.

(4) THE trial court held that the plots of land were purchased by the plaintiff from his own money and the building was also constructed by him from his own fund. It was also held that the building in question did not form part and parcel of the New Govindpur Colliery. It was further held that the building in question did not vest in the central government under the Act. The trial court, as such, decreed the suit of the plaintiff and also granted a decree for recovery of possession as the plaintiff had been dispossessed during the pendency of the suit. The Bharat Coking Coal Limited and others aggrieved against the judgment of the trial court went in appeal. Learned Additional District Judge, Dhanbad affirmed the findings of fact regarding the ownership and possession in favour of the plaintiff. He also held that the house in question belonged to the plaintiff in his individual capacity. On a further appeal by Messrs Bharat Coking Coal Limited, learned Single Judge of the High court though agreed with the contention of the learned counsel for the plaintiff but expressed his inability to decide the case in favour of the plaintiff as sitting singly, he was bound by a decision of the division bench of that court given in F.A. No. 289 of 1979 titled Bharat Coking Coal Limited v. KaliPrasadAgarwalla decided on 24/04/1980.

(5) AGGRIEVED against the aforesaid judgment of the learned Single Judge the plaintiff has come in appeal. It was contended by the learned counsel for the defendant respondent that K.P. Agarwallas case has been affirmed by this court in Kali Prasad Agarwalla v. Bharat Coking Coal Limited. It has thus been submitted that there is no force in this appeal and it ought to be dismissed as fully covered by the aforesaid decision in K.P. Agarwalla case. On the other hand, it was contended by the learned counsel for the appellant that the case of K.P. Agarwalla is wholly distinguishable and the plaintiffs suit in the present case ought to be decreed on the basis of the findings of fact recorded in favour of the plaintiff by al