D.N.UPADHYAY,J. - (1.) This second appeal been preferred by the plaintiff/appellant against the judgment dated 29th November, 2003 and decree dated 16th December, 2003, passed and signed by learned District Judge, Deoghar in connection with Title Appeal No.37 of 2003, whereby the judgment 19th August, 1986 and decree dated 13th July, 1987, passed and signed by learned 3rd Additional Sub Judge, Deoghar in connection with Title Suit No.83 of 1974/04 of 1984 been set aside and the appeal preferred by the defendants first set stood allowed.
(2.) This Court while admitting the appeal framed following substantial question of law:- "Whether lower Appellate Court committed serious error of law in reversing the judgment and decree of the Trial Court on extraneous ground, beyond the pleadings and evidences on record "
(3.) The fact of the case, in brief, is that the appellant, who was plaintiff in the court below, had filed a title suit, being Title Suit No.83 of 1974/04 of 1984. The plaintiff had purced land, measuring 11 Big, 11 Kat and 4 Dhurs, situated in village Sapha, Town Madhupur, being Thoka Nos.10 to 10/D of Patharol Ghatwal Estate, Holding No.120, Ward no.9 within Madhupur Municipality, described in Schedule-A of the plaint, from Lal Chand Mallick and Rup Chand Mallick through registered sale deed dated 12th March, 1974 and prior to the execution and registration of sale deed, the plaintiff had paid a sum of Rs. 1001/- as earnest money on 21st November, 1973, when he contracted for purce of the aforesaid land. It is contended that Defendant Nos.1 and 2, who are mussel men, with the help of their henchmen encroached upon portion of land, measuring 25 ' x 12 ' falling at the road side, mentioned in Schedule-B of the plaint, and after making encroachment, the defendants first set had constructed a shop. It is also contended that in course of encroachment, the defendants first set demolished part of the boundary wall lying towards road side. The plaintiff had stored some bricks for further construction and repair of the boundary wall, but those bricks and building materials were also taken by the defendants and their men. The plaintiff asked the defendants first set to surrender the encroached land, but they refused to do so and that created apprehension in the mind of plaintiff that the defendants may further encroach rest portion of the land because he resides in Kolkata. The cause of action for filing of the suit arose sometimes in the month of November, 1973 when the defendants constructed a shop over encroached portion of the land and on 18th March, 1974 when the plaintiff asked the defendants first set to vacate and surrender possession of the suit land, mentioned in Schedule- B of the plaint, the plaintiff had sought for a decree for possession over the suit land, mentioned in Schedule-B, and also for a decree for declaration of plaintiff's right, title and interest over the suit property, described in Schedule-A of the plaint, inclusive of property described in Schedule-B of the plaint. He further prayed for a decree for confirmation of possession over the land, mentioned in Schedule-A against the defendants first set and a decree for recovery of possession over the property, mentioned in Schedule-B, as against defendants first set. It was alternatively prayed for recovery of possession with respected to Schedule-A land in case the plaintiff is found dispossessed in future.;