- (1.) THIS appeal has been filed against the judgement and decree dated 31.1.2004, passed by learned Additional District Judge, Simdega in Title Appeal No. 4 of 1995 affirming the judgment and decree dated 26.11.1994, passed by learned Munsif, Simdega in Title Suit No. 33/85.
(2.) MR . Tandon, appearing for the appellant, submitted that the written statement filed by the vendor of the parties on 12.12.1989 was wrongly ignored by the learned courts below; that P.W.D. should have been made party and that the plaintiff -respondent could have filed suit for declaration that the sale deed dated 7.7.1980 executed in favour of the appellant was invalid but such suit would have been barred by limitation. The said submissions of Mr. Tandon cannto be accepted for the following reasons. The plaintiff -respondent no. 1 filed this suit for declaration of his possession over the suit land described in the scheduled of the plaint and for further declaration that the possession of defendant no. 1 -appellant, over 5 decimals of the suit lands was illegal and therefore defendant no. 1 should be removed from 5 decimals of land. The plaintiff further prayed for issuance of permanent injunction etc. with regard to the said encroached land.
(3.) AFTER considering the pleadings and the evidences on record, the trial court found that the plaintiff in paragraphs 2 and 4 of the plaint stated that P.W.D. acquired 25 decimals of land, out of plot no. 588, which position was admitted by the vendor of the parties -defendant no. 2 in his first written statement filed on 26.8.1986 vide para 2, but in the subsequent written statement filed on 12.12.1989 the said vendor denied acquisition of any area of land by P.W.D. out of plot no. 588. The subsequent written statement was rightly ignored by the trial court as no ground was made out for filing the same and it was filed without courts permission. Moreover, it was contrary to the written statement filed by the defendant no. 1 -appellant, in which he said that only 23 decimals of land were acquired by P.W.D. The trial court also rightly held that it was for defendant no. 1 -appellant to establish that only 23 decimals of land were acquired by P.W.D. as asserted by him but he failed to discharge such onus. It was found that all the parties admitted that the lands were acquired by the P.W.D. It was then rightly held that 25 decimals of land were acquired by the P.W.D. In such circumstances, the suit could not fail due to non -impleadment of P.W.D. as party.;