D.N. Patel, J. - (1.) THE present Letters Patent Appeal has been preferred by the appellant (original respondent no. 4) against an order, passed by learned Single Judge in W.P. (C) No. 2033 of 2007 dated 20th April, 2012, whereby, the learned Single Judge has allowed the writ petition, preferred by the original petitioner, who is respondent no. 1 in the instant appeal. Learned counsel for the appellant has submitted that the order, passed by the learned Single Judge in W.P. (C) No. 2033 of 2007, is de hors the facts and law and hence, deserves to be quashed and set aside.
(2.) IT is further submitted by the learned counsel for the appellant that, in fact, the land, in question, which is described as Khata No. 165, Plot No. 266, Mauza -Dhanbad, especially part thereof, which is known as DB -I, belongs to the present appellant i.e. Zila Parishad, Dhanbad, since 1934 onwards and much prior to that time also and never the name of respondent no. 1 is being reflected in the revenue records, at all. Similarly, the name of respondent no. 1, who is claiming ownership over the property, in question, is also not reflected in Register -II, which is also popularly known as "Tenant's Ledger" and in colloquial language, it is also known as "Jamabandi Register", in which normally the name of successor -in -title is introduced by way of mutation. In this Register also, neither the name of respondent no. 1 (original petition) nor the name of its predecessor -in -title has been reflected whereas, as stated herein above, in both the documents, which are vital documents so far as the land disputes are concerned, the name of Zila Parishad, Dhanbad, is reflected as the land belongs to Zila Parishad, Dhanbad. It is further submitted by the learned counsel for the appellant that respondent no. 1 (original petitioner) has no right, title and interest whatsoever over the property, in question, and they are encroachers upon the properties, in question, and therefore, initially on 31st August, 2005 notices were issues to all the three persons, who are encroachers in the aforesaid D3 -I area of Plot No. 266. Out of the aforesaid three encroachers, two preferred writ petitions before this Court being W.P. (C) No. 5254 of 2005 and W.P. (C) No. 5918 of 2005 whereas the present respondent no. 1 (original petitioner) chosen to prefer an appeal against the notice of removal of encroachment before the Commissioner, North Chhotanagpur Division, Hazaribagh, bearing Appeal No. 99 of 2005. It is further submitted by the learned counsel for the appellant that neither the writ petitions were entertained by this Court nor the appeal was entertained by the Commissioner, North Chhotanagpur Division, Hazaribagh. The appeal preferred by respondent no. 1 (original petitioner) was dismissed on 5th April, 2011. Against the order dated 29th March, 2006, passed in W.P. (C) No. 5244 of 2005 and W.P. (C) No. 5918 of 2005, the other two encroachers ventured to prefer L.P.A. No. 185 of 2006, which was also dismissed vide order dated 14th September, 2006 and those two writ petitioners, who were appellants in L.P.A. No. 185 of 2006, were directed to file suit and, in fact, they have instituted Title Suit No. 72 of 2006 and Title Suit No. 278 of 2007. Both the suits are pending before the learned Civil Judge, Senior Division -VH, Dhanbad. Thereafter, respondent no. 1 (original petitioner) preferred an interlocutory application for joining him as a co -plaintiff in Title Suit No. 278 of 2007 under the relevant provisions of the Code of Civil Procedure, which has also been dismissed vide order dated 10th August, 2011 and no appeal has been preferred by respondent no. 1 (original petition) against the order dated 10th August, 2011, as per the knowledge of the appellant. It is also submitted by the learned counsel for the appellant that the highest claim of the original petitioner is based upon the fact that the original petitioner has got registered sale deed in its favour, which is dated 18th September, 1997 (Annexure K). It is submitted by the learned counsel for the appellant that the predecessor -in -title of present respondent no. 1 (original petition) has, in favour, no title at all over the property, in question, and, therefore, he cannot pass a better title to the original petition. It is submitted by the learned counsel for the appellant that the original petitioner is relying upon some documents of the year, 1934 and thereafter of the year, 1981 and thereafter of the year, 1997. One of the sale deeds is of the year, 1934, which is also known as a deed of Permanent Settlement. Another document is a document of disclaimer of the year, 1981 and the third document is a Benamidar document of the year, 1997. It is vehemently submitted by the learned counsel for the appellant that all these documents are not helpful to the original petitioner, because these documents can only be proper adjudicated by the trial court in a suit where cogent and convincing evidences can be led by the parties to the suit. Otherwise, in every case, on the date the encroachment removal notice is given by the Zila Parishad, everybody will be claiming title upon the property, in question, in a writ petition, instead of filing a suit. It has been further stated by the learned counsel for the appellant that respondent no. 1 (original petitioner) should have filed a suit along with stay petition under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure and if such a petition is filed, the present appellant will cooperate in earliest disposal of the said petition.
(3.) MUCH has been argued by the learned counsel for respondent no. 1 (original petitioner) about the Benamidar's property, disclaimer documents etc., in detail. Learned counsel for the appellant pointed out that neither of the documents of the year, 1981, 1984 or 1997 is helpful to respondent no. 1 (original petitioner) for claiming ownership upon the property, in question. It is further submitted by the learned counsel for the appellant that this aspect of the matter has not been properly appreciated by the learned Single Judge and unnecessarily, in fine nicety, the provisions of Section 3(1) of the Bihar Provincialisation of Roads and Hospitals Act, 1947 has been discussed in the whole judgment. In fact, that has nothing to do with the facts of the present case. It has also been submitted by the learned counsel for the appellant that respondent no. 1 (original petitioner) has tired unnecessarily to confuse the court that a road, which has been carved out later on from the aforesaid property, is belonging to the Government and the Zila Parishad is also agreeing with the fact that always the road belongs to the Government, but, that does not mean that entire land of Plot No. 266 is also belonging to the Government. It has also been submitted by the learned counsel for the appellant that respondent no. 1 (original petitioner) has smartly given an application to the Circle Officer, asking him as to whether it should go for mutation and has obtained a letter from the Circle Officer that for mutation the original petitioner should go to the Public Works Department of the Government.;