1. This Second Appeal was admitted on 30.10.2001 on the substantial question of law as stated below:

“Whether the Courts below failed to consider the admission in view of Order VIII, Rules 3, 4 and 5 of the Code of Civil Procedure? “

2. This appeal arises out of the Judgment and Order dt.12.7.1999 passed by the learned 6th Additional District Judge, Nagpur in Regular Civil Appeal No.192 of 1992, which was dismissed. The Regular Civil Appeal arose out of the Judgment and Order dt.24.2.1992 passed in Regular Civil Suit No.996 of 1987 whereby the suit was partly decreed granting refund of a sum of Rs.50,050/- along with interest @ 18 % p.a. from the date of deposit till realisation of the whole amount.

3. The facts, briefly stated, are as under:

The original plaintiff namely Bhika s/o. Antu Kale had filed Regular Civil Suit No.996 of 1987 against the Railways for possession and perpetual injunction and costs of the suit. According to the plaintiff, he is a retired Railway servant. In the year 1981, he came across a proposal from the Divisional Railway Manager (Works), Central Railway, Nagpur for giving plots on licence. The plots were belonging to the Railways at various places and the Railways had invited applications from the members of public desirous of taking such plots on licence. The plaintiff, since he is a retired servant of Railways and as, according to him, he belongs to the Scheduled Caste community, he applied for grant of a plot on the basis of licence for yearly charges of Rs.7512.50/-, which were to be deposited before taking possession of the plot in question. According to the plaintiff, he had deposited a sum of Rs.15,025/- plus Rs.25/-towards the process fee to the Railways and an agreement dt.31.1.1982 was entered into. The plaintiff requested the defendant/Divisional Railways Manager (Works), Central Railway, Nagpur to hand over possession of plot no.8 to the plaintiff for running a hotel pursuant to the agreement. But, defendant no.1 did not do so despite issuance of letters to the defendant to give vacant possession of plot no.8 to the plaintiff for running hotel business. According to the plaintiff, after retirement from the Railways, the plaintiff was in a most difficult situation, but the defendant did not give possession of the plot to him, though the plaintiff had made payment. Thereafter, the plaintiff came to know that plot no.8 was unlawfully occupied by defendant no.4 Ramesh Shinde to the extent of its 3/4th portion and defendant no.4 refused to give possession of plot no.8 to the plaintiff, though the plaintiff had signed the agreement for licence and paid the sum of Rs.15,000/- to the defendant. However, defendant no.2 Estate Officer, Central Railway, Nagpur issued a notice to the plaintiff on 14.9.1982 to vacate plot no.8 on the ground that it was illegal occupation of the plaintiff although the whole of plot no.8 was not given to the plaintiff. The plaintiff who claimed possession alternatively, had prayed for return of the sum of Rs.15,050/- with interest from the defendant till the amount of realised.

4. The defendants/Railways resisted the suit claim by filing Written Statement (Exh.25). According to the plaintiff, though he was not delivered vacant possession of the entire plot, he had constructed temporary shed of 10 x 8 ft. on that plot. On the pretext of encroachment detected, the plaintiff was served with notice by the Railways for eviction of the plaintiff from the piece of land which he had occupied on the ground that he was an unauthorised occupant. Notice was served by the Estate Officer of the Railways. The Railways had contended that the Civil Court has no jurisdiction to entertain the suit on the ground that the Estate Officer was authorised to evict the plaintiff.

5. The trial Court found that there was an agreement of license between the plaintiff and the defendant on 24.1.1982 and the plaintiff had already encroached upon the open plot of land admeasuring 10 x 8 ft. adjacent