VIKRAMADITYA PRASAD, J. - (1.) THE substantial question of law to be answered in this second appeal is as follows : '' "Whether in absence of any finding that the plaintiff is not in a possession of the suit lands, his suit for a decree for permanent injunction could have been dismissed only on the ground that he has failed to prove his title, in view of the decision of the Supreme Court in Krishanlal Biharilal Maheshwari and others V/s. Ramarao Hanumant Sao Ratil and others, reportd in AIR 1981 SC 1183 -
(2.) THE question aforesaid arose out of the following facts : The plaintiff brought a suit praying for the following reliefs : '' (a) A decree for permanent injunction restraining the defendant from encroaching upon the plaintiffs land of Schedule B and disturbing in any way the possession of the plaintiff either by defendant or through his men, agent and representtives. (b) Decree for all costs of the suit. (c) Decree for any other relief or reliefs to which the plaintiff is entitled under the law and equity. The case of the plaintif runs as follows that the land bearing plot No. 1366 appertaining to Khata No. 53 measuring an area 1.25 acres beling to the ex -landlord of Samanbhpur Estate, namely Janki Kumari and Bulaki Ram Versus Jatru Mahali Chandan Kumari, wives of late Jagat Narayan Singh and they were in possession of the aforesaid land along with other lands of Mauja Deoli within Police Station Govindpur, District Dhanbad. The Ex -landlord settled large number of plots along with the disputed plot to one Hardhan Mondal by granting rent receipt and delivery of possession which was followed by grant of Hukumnama. Hardhan Mondal after taking settlement came in possession over the lands and later entered into negotiation of sale of the lands under Khata No. 53, plot No. 1366 measuring an area 62 -1/2 decimals on the western side of the said plot and finally sold the land to Smt. Dayamanti Devi by a deed dated 24.2.1954 and delivered possession to her. Dayamanti Devi after purchase came into possession of her purchased land and remain in possession and got her name mutated and all along paid rent to the State of Bihar. Further case of the plaintiff was that the said Dayamanti Devi sold the land described in Schedule B of the plaint along with other plots of land through her power of attorney holder Shri Ram Krishna to the plaintiff and delivered possession, who thereby acquired valid title over the disputed lands. Further case of the plaintiff was that defendant recently installed and constructed a Gul Factory which is named and styled as Godawari Funel Product over plot No. 1355 lying adjacent to plot No. 1366. Further case of the plaintiff was that as the plaintiff is in possession of the western half of plot No. 1366 which portion lie just in front of the Godawari Funel Product. The defendant approached the plaintiff for sale of the said land to be used for the ingrace and egress of his transport and for use of the said land as entrance and exist from and to Godawari Funel Product. As the defendant wanted to purchase the said valuable land of the plaintiff for a ridiculously law value, hence the plaintiff did not. Being frustrated in his attempt the defendant is now threatening the plaintiff to dispossess him by illegal means. Hence present suit with the aforesaid reliefs was filed.
(3.) THE suit was contested by the defendant by filing written statement. As per written statement the case of the defendant was that the suit is not maintainable, the plaintiff has got no cause of action for the present suit. The suit is undervalued, hence the trial Court has got no jurisdiction. The suit as bad for non - joinder and mis -joinder of parties and cause of action. The suit is barred under the principle of estoppel waiver and acquiescence and principle of natural justice the suit was also barred by limitation. The suit is premature and the suit is barred under Order 2, Rule 2 of the CPC. Further case of the defendant was that the plaintiff has no right title or interest over the disputed land. It was further case of the defendant that one acre of land in plot No. 1366 including the suit land has been acquired by Ramesh Chandra Garg, the father of the defendant. The further case of the defendant was that plot No. 1366, Khata No. 53 was gair abad malik and vested in the State of Bihar with the vesting in Jamindari. The land in suit was danga patit and was made fit for cultivation by Panu Napit and Nakul Napit in the year 1956 who had land contiguous to it in plot No. 1355. This matter was in knowledge Karamchari and a report of encroachment was submitted to the Circle Officer, Govindpur who started a proceeding for settlement of this land under Case No. 190 of 1964 -65 and the said Circle Officer by his order dated 23.9.1967 settled one acre of land of plot No. 1366 on taking salami and fixing rent therefore and accordingly. The land was settled in favour of the said Panu Napit and Nakul Napit, a correction slop along with the sketch plan of the said plot was issued in favour of the said Panu Napit and another. The said Panu Napit and Nakul Napit while in possession sold the land of plot No. 1355 and 1366 to Gajendra Prasad Chauhan and Praveen Kumar P. Chauhan by two registered deed of sale No. 15085/71 and 17760 of 1971. In the year 1978 bv Sale Deed No. 6011/78 and 6012 of 1978 Gajendra Chauhan and Praveen Chauhan transferred their right title and interest in plot No. 1355 to Ramesh Chandra Garg and Smt. Puspa Garg, Ramesh Chandra Garg and Puspa Garg, the mother of the father of defendant immediately after purchase came in possession of the said plot of land got it enclosed within a boundary wall and orally settled the land and allowed them to construct a Coal Briquette factory thereon in the process of enclosing the said land within a boundary wall the said Ramesh Chandra Garg encroachment upon a portion of land measuring 3 decimals on the Southern side bearing plot No. 1309 for converting the said land with G.I. road and also constructed a path way on the said plot of land No. 1309 by encroaching 2 decimals of land out of the said plot No. 1309 and as such a proceeding of encroachment was started on the report of Karamchari to the CO. on 28.12.1985 in Encroachment Case No. 10(x)/85 -86 and a recommendation was made for the settlement of land in favour of Ramesh Chandra Garg. During the recent survey of the said land the schedule land has been recorded in the name of Ramesh Chandra Garg who has been in possession thereof to the exclusion of plaintiff and all other persons. In this way defendant is in possession over the suit land since 1918. The plaintiff has got no right, title or interest over it. The sale deed executed by Dayamanti Devi is a collusive. It was the further case of the defendant that the land in suit being Gair -Abad Malik, no question ever arose for settlement thereof in favour of Hardhan Mandal in any manner whatsoever and for delivery of possession and Bulaki Ram Versus Jatru Mahali grant of any Hukumnama in his favour. Therefore, the suit was liable to be dismissed.;