- (1.) S. U. Khan, J. At the time of arguments no one appeared on behalf of contesting respondents in these writ petitions hence only arguments of learned Counsel for the petitioners were heard.
(2.) SUBSTITUTION application to bring on record legal representatives of respondent No. 2 in writ petition No. 7528 of 1978 is allowed. According to the petitioners land admeasuring 1. 6 acres comprised in several plots including old plot Nos. 552 to 555 was acquired under Land Acquisition Act through notification under Section-6 of the Act published in the Gazette dated 15-5-1914 for erstwhile B. N. W. Railways. It has further been stated that immediately after the acquisition the plot numbers of the acquired land were changed in the agricultural year starting from 1-7-1914. According to the further case of the petitioners one Bechai Dubey took wrongful possession over the acquired land comprised in the aforesaid plots in 1942-43 hence railway administration filed O. S. No. 531 of 1943, Governor General In Council v. Bechai Dubey and Ors. , for removal of constructions as Sri Dubey had also raised constructions over the said plots. Suit was decreed by Additional Civil Judge/j. S. C. C. , Gorakhpur on 31-7-1948. Suit for possession by removal of defendants' construction was decreed and defendants were further restrained from interfering in plaintiffs' possession in future. Thereafter in the year 1952 execution application for execution of the decree dated 31-7-1948 was filed. According to the petitioners, contesting respondents in these writ petitions resisted the delivery of possession hence petitioners filed application under Order XXI Rule 97, C. P. C. against the contesting respondents in these writ petitions. The application was dismissed on the ground that the opposite parties of the said application, i. e. , contesting respondents in these writ petitions were not found to be resisting or obstructing delivery of possession. Against the said order petitioners filed revision in this Court being Civil Revision No. Nil of 1952 which was dismissed on 18th (or 28th) August, 1952. Copy of the said judgment is Annexure C. A.-1 to the counter-affidavit which does not contain the number of the revision. (However, it is stated therein that the said revision was directed against decision of Additional Civil Judge dated 23-4-1952 ). In the said judgment it was held that : "there was nothing to suggest any connection between the O. P. and J. D. and even if the constructions have been made during the pendency of the suit it cannot be said that they were made at the instigation of the J. Ds". It was further held as follows : "when the applicant itself failed to prove that it was the J. Ds. who were resisting delivery of possession the O. P. was not required to prove that it claimed in good faith to be in possession of the property on its own count. " Thereafter petitioners filed suit in the year 1953 (O. S. No. 442 of 1953) against the contesting respondents. In the suit application was filed for withdrawal of the suit with permission to file fresh suit. The said application was allowed by the Civil Judge on 29-9-1956 allowing the plaintiff to withdraw the suit with liberty to institute a fresh suit on the same cause of action provided that, the plaintiff deposited before the institution of the subsequent suit but in no case later than six months from the said date, the cost of the defendants incurred till then.
(3.) INSTEAD of instituting fresh suit petitioners opted to file application for eviction of the contesting respondents under Public Premises Eviction of Unauthorised Occupants Act, 1958 in the year 1964 giving rise to the instant writ petitions. The application was allowed by Estate Officer in the year 1968 however, on appeal the order was reversed and matter was remanded. After remand the application was again allowed on 20- 11-1975. Against the said orders appeals were preferred which were allowed on 1-5-1978 and orders passed by Estate Officer were set aside. Decision of the appellate Court dated 1- 5-1978 is under challenge in these writ petitions. Before Estate Officer thirteen cases were filed being case No. 95 of 1964 against Ram Nain, 100 of 1964 against Ram Dulare, 101 of 1964 against Ram Das and case Nos. 111 to 120 of 1964 against Bhottoo, Ram Awtar, Ram Chandra and others, Babu Lal, Nuneshwar Prasad, Munni Lal, Jag Das, Baij Nath, Sher Singh, Jagat Narain Gupta. The area of the alleged encroachment by the opposite parties in the said case varied from 87 Sq. yards to 1015 Sq. yards.;