S.J. Mukhopadhaya. J.- The writ petition was preferred by one Subroto Kumar Gupta and 5 others against the order dated 19th October, 1993/27th October,. 1993 J passed in Encroachment Case No. 771 1993-94 and common appellate order dated 29th October, 1993 passed in Encroachment Appeal No. 9/1993.

2. In the Encroachment Case the Deputy Collector Land Reforms, Hazaribagh ('DCLR' for short) declared the land in question as public land and ordered to remove the petitioners. The appellate authority while observed that Encroachment has already been removed in the light of order passed by the lower Court, refused to restore possession of petitioners but given them liberty to seek redressal at proper. forum. If they have any grievance.

3. During the pendency of the writ petition the first petitioner, Subroto Kumar Gupta died and the heirs and legal representatives were substituted in his place.

4. The case of the petitioners is that the land in question was homestead/Lakhe Raj land having leased to one Beni Ram Bhagat. The heirs of Beni Ram Bhagat, namely, Olan Ram and Anant Ram sold plot No. 37, 38, 39 and 40 of Mauza, Nawada, Thana and Municipality, Hazaribagh having Thana No. 139, Khewat No.2, 4/2 and 5 to Babu Baidya Nath Gupta and Girindra Kumar Gupta i.e., the predecessor-in-interest of (deceased) Subroto Kumar Gupta by a registered deed dated 11th May, 1985/19th July, 1985.

5. In the year 1955 Raja Bahadur Kamakhya Narain Singh, the sole proprietor •of Ramgarh Raj filed a Title Suit No. 14/ 1955 in the Court of the learned Subordinate Judge, Hazaribagh, impleading the predecessor-in-interest of Subroto Kumar Gupta as defendants. In the said suit the plaintiff, Raja Bahadur Kamakhya Narain Singh prayed for his khas possession by evicting the defendants including predecessor-in-interest of Subroto Kumar Gupta, over land in question bearing plot No. 37,38,39 and 40. In the said Title Suit No. 14/1955 the State of Bihar was also a party who filed its written statement and pleaded that Maharaja of Ramgarh Raj ceased to be the proprietor of the lands in question which vested with the State of Bihar. At paragraph 21 of the written statement the State of Bihar pleaded that the suit was not maintainable in view of decision in an earlier Title Suit No. 6/49. On 14th July, 1964, Title Suit No. 14/1955, filed by Raja Bahadur Kamakhya Narain Singh was dismissed with cost; the Court held that the predecessor-in-interest of Subroto Kumar Gupta were in possession of the land in question.

6. Another Title Suit No. 13/23 of 1955/57 was filed by Hari Narain Singh and others for declaration of their right, title and interest over various properties including the land and the pond in question having plot No. 38 and 39. They having lost in the suit preferred Title Appeal No. 77/1960/10/1962 which was also dismissed on 19th July, 1963 followed by Second Appeal 887 of 1963, preferred by Hari Narain Singh and others compromised on 11th October, 1971 on the terms and conditions mentioned in the trust deed, which formed part of the compromise petition. Six persons including Subroto Kumar Gupta were named as founders and trustees of the trust and were accepted as owners of the land and pond in possession, as shown in the schedule of the appeal.

7. It will be evident from the order dated 19/27th October, 1993, passed in Encroachment Case No. 77/1993-94 that DCLR, Hazaribagh though noticed that there was disputed question of right and title involved in the case, still he ordered to evict the petitioners. The appellate authority vide order dated 29th October, 1993, passed in Encroachment Appeal No. 9/1993 did not choose to determine the case on merit on mere statement of the lawyer of the State that the encroachme11t had already been removed.

8. It is a settled law that in cases where there is a genuine dispute of right, title and possession in respect to a land, it should not be determined by any authority in a summary proceeding. Parties should be allowe