D.N.PATEL,J - (1.) The present Letters Patent Appeal has been preferred against an order, passed by the learned Single Judge dated 24th March, 2011 in W.P. (C) No. 1380 of 2011 whereby, the petition, preferred by the appellant has been dismissed and the order, passed by the Deputy Commissioner, Ranchi dated 20th January, 2011 in Encroachment Appeal No. 28R15 of 20102011 has been upheld. By this Appeal, the order, passed by the Circle Officer, Kanke, Ranchi dated 11th August, 2010 in Encroachment Case No. 1 of 20092010 has been confirmed. Thus, by dismissal of the writ petition, both the orders, passed in Encroachment Case No. 1 of 20092010 dated 11th August, 2010 as well as the order, passed in Encroachment Appeal No. 28R15 of 20102011 dated 20th January, 2011 have been upheld. Against this order, this Letters Patent Appeal has been preferred mainly on the ground that the petitioner has purchased the property bearing plot no. 692 and there is an adverse possession upon the road since long and therefore, till the suit of the present appellant bearing Title Suit No. 203 of 2009 is decided by the Civil Court, both Circle Officer as well as the Deputy Commissioner could not have decided the encroachment matter against the present appellant. This aspect of the matter has not been appreciated by the learned Single Judge while dismissing the writ petition vide order dated 24th March, 2011 and hence, the said order, deserves to be quashed and set aside.
(2.) COUNSEL for the respondent State submitted that there is no error committed by the learned Singe Judge in dismissing the writ petition, preferred by the present appellant because the orders, passed by the Circle Officer, Kanke as well as by the Deputy Commissioner, Ranchi, which are at Annexure7 and 8 to the memo of this appeal, are apparently in consonance with the facts and law. The land, in question, upon which there is an encroachment by the present appellant is a road even as per the Regional Survey Khatian and there is construction on road and therefore, the orders, passed by the Circle Officer as well as by the Deputy commissioner, Ranchi are factually correct and there is no law in favour of the present appellant. Moreover, looking to the map of the nearby few plots i.e. plot nos. 691, 692 and 694, which is at page no. 29 to the memo of the Letters Patent Appeal, even as per this map, there is a road between plot no. 694 and 691. The same road is extended up to the land between plot no. 694 and 692. This is, prima facie, even from a map, which is annexed to the memo of the Letters Patent Appeal as Annexure1, there is a road between plot no. 694 and 691 and also between plot no. 694 and 692 and therefore, the owner of plot no. 694 can also use the land, in question, as a road. This aspect of the matter has also been appreciated by both the authorities below, namely the Circle Officer as well as the Deputy Commissioner, Ranchi while passing the orders, under Bihar Public Land Encroachment Act, 1956 and therefore, rightly the writ petition has been dismissed by the learned Single Judge and therefore, the Letters Patent Appeal deserves to be dismissed. Having heard counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly on the following facts and reasons: (i) Counsel for the appellant (original petitioner) submitted that plot no. 691 is an ancestral property and plot no. 692 has been purchased by the Exlandlord and there is a road shown by the respondents in the map at page no. 29, but, there is a construction since years upon this property and therefore, there is an adverse possession upon the road and therefore, the encroachment could not have been removed. This contention is not accepted by this Court mainly for the reason that even from the Regional Survey Khatian, it appears that the land, which is encroached, is shown as a road and there cannot be an adverse possession of road used by others. (ii) It further appears from the map, which is annexed at Annexure1 to the memo of this Letters Patent Appeal, that there is a road between plot no. 694 and 691. This road is further extended and again is in existence between plot no. 694 and plot no. 692. Thus, it appears prima facie that the road is also shown as per Annexure1 to the Letters Patent Appeal, which can be utilized by the owner of plot no. 694. (iii) It further appears from the facts of the case that the appellant has preferred a title suit against the State Government bearing Title Suit No. 203 of 2009 in which a stay application was preferred by the present appellant, who is original plaintiff in the aforesaid Title Suit, under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The stay application was dismissed by the trial court i.e. by the Additional MunsifII, Ranchi vide order dated 26th June, 2010. Thus, the contention, which is raised today, was also raised before the concerned trial court and it was brushed aside by the aforesaid order dated 26th June, 2010. Thus, there is no substance in any of the contentions, which are raised today, before this Division Bench. (iv) Against the order dated 26th June, 2010, passed by the Additional MunsifII, Ranchi in an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure in Title Suit No. 203 of 2009, a Miscellaneous Appeal No. 19 of 2010 was preferred before the Judicial Commissioner, Ranchi, which was also dismissed as withdrawn. Counsel for the appellant is unable to give the date of the withdrawal, but, the fact remains that the appeal, preferred by the present appellant has been withdrawn. Thus, the order, passed by the Additional MunsifII at Ranchi dated 26th June, 2010 in an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure in Title Suit No. 203 of 2009 has attained its finality. Thus, the arguments of adverse possession and purchase of the property etc. have been raised and have not been accepted by the concerned trial court. Thus, no error has been committed by the learned Single Judge in dismissing the writ application, preferred by the present appellant. (v) On perusal of the order, passed by the Circle Officer dated 4th August, 2010, which is at Annexure7 to the memo of the present Appeal as well as the order, passed by the Deputy Commissioner, Ranchi dated 20th January, 2011, which is at Annexure8 to the memo of the present Appeal, no error has been committed by both these authorities in deciding the encroachment matter and also, looking to the order, passed by the learned Single Judge, no error has been committed by the learned Single Judge in dismissing the writ petition.
(3.) AS a cumulative effect of the aforesaid facts and reasons, there is no substance in this Letters Patent Appeal and hence, the same is hereby, dismissed.;