Miscellaneous Appeal No. 146 of 2012 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.146 of 2012 ====================================================== 1. Ram Prabesh Singh S/O Late Jagar Nath Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 2. Rukmini Kuwar W/O Late Raj Nath Sharma, Mother Of Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 3. Basanti Kuwar W/O Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 4. Uday Sharma S/O Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 5. Hriday Kumar Sharma S/O Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 6. Ajay Sharma S/O Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 7. Sanjay Sharma S/O Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 8. Rekha Devi D/O Shyam Bihari Sharma R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 9. Most. Lalmati Kuwar W/O Kumar Brahma Prasad R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran .... .... Appellant/s Versus 1. Rajeshwar Prasad Singh S/O Late Ram Chandra Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 2. Rajendra Singh S/O Late Ram Chandra Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 3. Gorakh Singh S/O Late Ram Chandra Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 4. Supana Kuwar W/O Late Chandradeep Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 5. Dewaki Devi D/O Late Chandradeep Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 6. Bimal Devi D/O Late Chandradeep Singh R/O Village - Kadipur Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran 7. Nirmala Devi D/O Late Chandradeep Singh R/O Village - Kadipur
Legal Reasoning
Patna High Court MA No.146 of 2012 (3) dt.31-07-2013 2 Bangara, P.S. Jalalpur ( Old ), And Present P.S. Khaira, P.O. Nagra, District - Saran
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance: For the Appellant/s : Mr. Arun Kumar Rai For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 03. 31-07-2013 Heard Mr. Arun Kumar Rai, learned counsel appearing on behalf of the appellants. This appeal under Order 43 rule 1(u) of the Code of Civil Procedure read with Section 104 thereof is directed against the judgment and order dated 13.12.2011 passed by learned 3rd Additional District Judge, Saran at Chapra in Title Appeal No. 27 of 2009, whereby the learned appellate court below has remitted the matter back to the trial court for adjudication of the suit on merits including the issue of limitation and estoppel. Brief facts relevant for disposal of this appeal is that a Title Suit No. 361 of 2005 was filed by the plaintiff respondent nos. 1 to 3 seeking a decree of permanent injunction as against the defendants as also for restraining them from interfering with his peaceful possession over the suit property mentioned in Schedule- II to the plaint. The title suit was dismissed by the learned Sub- Judge-II, Saran at Chapra vide judgment and decree dated 27.1.2009 on the preliminary issue of the suit being barred on the Patna High Court MA No.146 of 2012 (3) dt.31-07-2013 3 principles of res judicata and in the light of the findings recorded in the earlier round of litigation between the parties in Title Suit No. 51 of 1978. The plaintiff being aggrieved by the judgment and decree passed by the trial court preferred Title Appeal No. 27 of 2009 and which has since been allowed by the appellate court below vide judgment and order dated 13.12.2011, whereby the appellate court below while taking into consideration the contest in issue has been pleased to remit the matter back to the trial court for its adjudication of the suit on merits while taking note of the issues of limitation and estoppel as well as any other issue involved in the suit. Some of the defendants have chosen to question the order of remand by way of the present appeal. Mr. Rai, learned counsel appearing on behalf of the defendants-appellants before this Court has invited the attention of this Court towards the findings recorded by the trial court in Title Suit No. 51 of 1978, more particularly on the findings recorded in relation to issue nos. 4 and 5 relatable to unity of title and possession and the entitlement of the plaintiffs for partition. The said Title Suit No. 51 of 1978 was filed by one Jai Narayan Singh who is stated to be the step brother of the plaintiffs in the present suit being the son from the first wife of Ramchandra Singh, son of Jagarnath Singh, the common ancestors of the parties. It is stated Patna High Court MA No.146 of 2012 (3) dt.31-07-2013 4 that the finding recorded by the trial court in relation to issue nos. 4 and 5 is a complete answer of the present suit being barred on the principles of res judicata inasmuch as the foundation of the present suit is based upon a gift deed stated to have been executed by one Laxmina Kunwar, wife of Jagarnath Singh, the grand father of the present plaintiffs. It is stated that the plaintiffs on the basis of the said gift deed dated 7.9.1977 are seeking to injunct the defendant no. 1 who happens to be the own uncle of the plaintiffs. It is stated that in the earlier suit which was filed by the step brother of the present plaintiff seeking partition, it has been categorically held by the trial court that the property which was subject matter of the gift deed was not a stridhan property rather had been purchased from the joint family fund. He thus submits that no appeal having been preferred by the trial court, it would operate as an estoppel to these plaintiffs if not act a res judicata to the present appeal. He also submits that since the plaintiffs are relying upon the gift deed dated 7.9.1977 for seeking a decree of permanent injunction which gift deed has been held by the trial court in Title Suit No. 51 of 1978 to be a property purchased from the joint family funds, hence the present suit is barred on the principles of res judicata. I have heard Mr. Rai, learned counsel appearing on behalf Patna High Court MA No.146 of 2012 (3) dt.31-07-2013 5 of the appellant and I have perused the materials on record. No doubt there are certain observations made by the trial court in relation to the gift deed executed by Laxmina Kunwar while discussing issue nos. 4 and 5 in Title Suit No. 51 of 1978. The suit, however, was dismissed on grounds of non-joinder of parties inasmuch as the daughter of Jagarnath Singh was not made a party to the earlier suit and hence the suit was dismissed. The learned appellate court below while taking note of these aspects has opined that in view of the conclusion drawn by the trial court in Title Suit No. 51 of 1978, dismissing the suit on grounds of non-joinder of parties, the observations made in relation to the gift deed is an obiter and requires a decision on merit. It is manifest from the judgment passed in the Title Suit No. 51 of 1978 that although a discussion has been made on the gift deed by the trial court while discussing the issue of unity of title but no issue as regarding the validity of gift deed had been framed. It is perhaps taking note of such circumstances that the appellate court below while remitting the matter to the trial court for adjudication on merits, has also directed for consideration of the issue of limitation and estoppel as well as any other issue involved in the suit. It is not in contest that the validity of the gift deed was not in contest in the earlier round of litigation though certain Patna High Court MA No.146 of 2012 (3) dt.31-07-2013 6 observations have been made by the trial court in the Title Suit No. 51 of 1978. As the matter is open before the trial court for adjudication on merits, limitation, estoppel or any other issue that would arise in the suit, this Court would refrain from expressing any opinion as regarding status of the gift deed. Suffice it to say that in view of my observations made hereinabove, I am not persuaded to interfere with the judgment and order impugned.
Decision
This appeal is accordingly disposed of. As the suit is of the year 2005, the trial court would be well advised to consider and dispose of the same expeditiously. S.Sb/- (Jyoti Saran, J)