CAV JUDGMENT

Date : 23-01-2024 The instant Civil Misc. Petition has been filed by the petitioner under Article 227 of the Constitution of India for setting aside the order dated 19th June, 2018 passed in Title Suit No. 287 of 2014 by learned Sub. Judge-IV, Saharsa whereby and whereunder the learned trial court rejected the petition dated 22.12.2017 filed by the petitioner for appointment of Survey Knowing Pleader Commissioner.

02. The facts of the case as it appears from the record are as follows:-

(i) The respondents-1st set are plaintiffs in Title Suit No.

287 of 2014 and the petitioner is the defendant no.1 before the learned trial court. In Title Suit No. 287 of 2014, the plaintiffs sought for the following relief(s):-

(I) That it may kindly be inquired into and declared that the suit land pertains to the Rasta of the plaintiffs and they have got sufficient easementary rights over it.

(II) That the same way it may also be declared that obstructions raised over the suit land by the defendants are totally illegal and unlawful and they have not acquired any right or title over it by its forceful and illegal occupation.

(III) That the defendants be ordered by issuing a decree to this effect to remover the obstruction raised by them over the suit land and give its empty possession to the plaintiffs.

(IV) That in case if the defendants do not remove their illegal obstruction from over the suit land by their own they may be made to vacate it by the process of court and the plaintiffs be made to sit in possession of it.

(V) That taking into account the gravamen of the situation hearing of the case may be held on day to day basis and by passing a decree of permanents injunction the defendants may permanently be retrained from going over the suit land.

(VI) That as an interim measure the defendants may further be restrained by passing an order of injunction to not improve or consolidate their illegal occupation and change physical features of the suit land in any manner.

(VII) That any other or further equitable relief for which the plaintiffs are found entitled may kindly be granted to them.”

(ii) Both the plaintiffs and defendants are purchasers from same vendor, one Narayan Sah. Plaintiff/respondent no. 2 purchased 5 katha of land in the year 1972 in old khata no. 53, old khesra no. 357 and old khata no. 50, old khesra no. 360. The said Narayan Sah also gave the plaintiff/respondents 10 dhurs of land for rasta (motorable road). But, in the sale-deed the vendor did not mention about the rasta and subsequently, after two years, sold 3 katha land to the defendant/petitioner-Premlata Devi in the plot no. 347 leaving the passage of the plaintiffs intact. However, while describing the boundary in the sale deed of defendant no.1/petitioner, instead of specifically showing passage, i.e., rasta of the plaintiffs, the vendor mentioned about his land in the northern side of the boundary. It appears from the plaint that the plaintiffs got the map of their house passed from the municipality in the year 1989 and even in the map rasta given by the vendor in the East has been shown. The plaintiffs have been using this passage continuously and have submitted that it was only egress to the main road from their house. The plaintiffs further stated that after 32 years of continuous use, in the month of March, 2004, while the plaintiffs were away to their native place, the defendant-1st set raised a wall and also sunk a tube-well in the passage and blocked the only path of the plaintiffs. The plaintiffs moved before the SDM for removal of illegal blockade and a proceeding under Section 147 of Cr.P.C. was initiated vide order dated 06.07.2004, which was challenged by the petitioner/defendant by filing Criminal Revision No. 274 of 2004. The said criminal revision was dismissed by the learned Fast Track Court-VI, Saharsa which held the order initiating proceeding under Section 147 Cr.P.C. to be legal and valid and the order of the learned Fast Track Court- VI, Sa