Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.149 of 2008 ====================================================== 1. Ram Pratap Mahto son of Late Akloo Mahto 2. Ram Naresh Mahto @ Ram Naresh Prasad, son of Ram Ppratap Mahto 3. Lal Narain Mahto @ Lal Narain Prasad son of Ram Pratap Mahto, all resident of Mohalla-Dujra Chak, P.S.Budha Colony, District-Patna. .... .... Petitioners. Versus 1. Ram Piyare Mahto @ Ram Piyare Singh son of Late Mulchand Singh, resident of village-Chaitola, Raghopur, P.S. Raghopur, District- Vaishali, 2. Ram Bhajan Mahto son of Late Akloo Mahto 3. Mostt. Ganpati Mahto wife of Late Ram Chanera Mahto 4. Smt. Sita Kumari 5. Smt.Dashari Kumar, both daughters of Late Ram Chandra Mahto 6. Doman @ Bacha son of Late Ram Chandra Mahto, all resident of Mohall-Dujra Chak, P.S.Budha Colony, Patna. 7. Smt. Shanti Devi, wife of Hardeo Mahto, daughter of Ram Chaandra Mahto deceased resident of village-Athai Diara, P.S.Sonepur, District- Saran 8. Butai son of Hari Prasad Mahto both resident of village-Dujra Chak, P.S.Budha Colony, District-Patna presently residing at Mohalla-Tikiatoli Mahendra, P.S.Sultanganj, District-Patna. Opposite Partiess ====================================================== with Civil Revision No.2231 of 2007 ====================================================== 1. Ram Pratap Mahto son of Late Akloo Mahto 2. Ram Naresh Mahto @ Ram Naresh Prasad, son of Ram Pratap Mahto 3. Lal Narain Mahto @ Lal Narain Prasad son of Ram Pratap Mahto, all resident of Mohalla-Dujra Chak, P.S.Budha Colony, District-Patna. .... .... Petitioners. Versus 1. Ram Piyare Mahto @ Ram Piyare Singh son of Late Mulchand Singh, resident of village-Chaitola, Raghopur, P.S. Raghopur, District- Vaishali, 2. Ram Bhajan Mahto son of Late Akloo Mahto 3. Mostt. Ganpati Mahto wife of Late Ram Chanera Mahto 4. Smt. Sita Kumari 5. Smt.Dashari Kumar, both daughters of Late Ram Chandra Mahto 6. Doman @ Bacha son of Late Ram Chandra Mahto, all resident of Mohall-Dujra Chak, P.S.Budha Colony, Patna. 7. Smt. Shanti Devi, wife of Hardeo Mahto, daughter of Ram Chaandra Mahto deceased resident of village-Athai Diara, P.S.Sonepur, District- Saran 8. Butai son of Hari Prasad Mahto both resident of village-Dujra Chak, P.S.Budha Colony, District-Patna presently residing at Mohalla-Tikiatoli Mahendra, P.S.Sultanganj, District-Patna. Opposite Parties. ====================================================== Appearance : (In C.R. No.149 of 2008) Patna High Court C.R. No.149 of 2008 (13) dt.07-02-2013 2 For the Petitioner/s : Mr. Manu Shankar Mishra Mr. Rajani Kant Mishra
Legal Reasoning
Mr. Suresh Mishra, Advocates. For the Respondent/s : Mr. (In C.R. No.2231 of 2007) For the Petitioner/s : Mr. Manu Shankar Mishra Mr. Rajani Kant Mishra Mr. Suresh Mishra, Advocates For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 13. 07-02-2013. In each of the two civil revision applications, the petitioner has questioned the order of the trial court whereby the objections as to the maintainability of Title suit No.195 of 1970 has been relegated for consideration at the stage of final hearing of the suit inter alia on grounds of involving mixed issues of law and fact. Whereas the petitioner in C.R. No.2231 of 2007 has questioned the order dated 10.9.2007 passed by learned Sub- Judge, 2, Patna whereby the application questioning the maintainability of the suit on grounds of incompetency has been rejected, the second application bearing C.R.No.149 of 2008 questions the order dated 18.12.2007 passed by the Sub Judge, 2, Patna, whereby the objection raised by the petitioner as to the maintainability of the suit under section 11 and 151 of the Code of Civil Procedure (hereinafter referred to as the „Code) had been rejected, inter alia, on grounds of similar objections having been rejected on earlier occasion. Patna High Court C.R. No.149 of 2008 (13) dt.07-02-2013 3 Despite service of notice the opposite parties have not appeared. I have heard Mr. Manu Shankar Mishra, learned counsel appearing on behalf of the petitioner in two civil revision applications. As the issue which is the subject matter of two civil revision applications raises common issue of law regarding the maintainability of the suit, both civil revision applications have been taken up together with a view to their final disposal at the stage of admission. Brief summary of the matter in the present civil revision applications is that the defendant-petitioner had filed a title suit giving rise to T.S.No.53 of 1966/71 of 1968 seeking declaration of title in respect of the suit property. It is a matter of record that the plaintiff-opposite party no.1 was defendant no.1 in the said suit. The relief and the schedule property which was the subject matter of the said title suit is as follows: “(a) That it be declared that the plaintiffs have title in Schedule-2 property and defendants have no title therein, (b) That possession of Schedule-2 property be delivered to the plaintiffs after dispossessing the defendants by process of court, (c) That a decree for mesne profits be passed in favour of the plaintiff against the defendants, (d) That cost of the suit be awarded to the plaintiffs, (e) That the other relief or reliefs may be granted to the plaintiffs as they may be found entitled. Schedule-II All that land and structures bearing S.P. No.432, under Patna High Court C.R. No.149 of 2008 (13) dt.07-02-2013 4 khata no.120 appertaining to Tauzi No.5225/14, 345, area 3 decimals lying in Mauza Dujra, Pargana-Phulwari, Thana No.4 Phulwari at present Digha and District Patna and bounded as follows: North- Jitlal Mahto South- Budh Grih Nirman Society West- Budh Grih nirman Society. East- Mulchand at present Lachhminia and others. And which bears S. Holding No.392/382, circle No.246, Mohalla- Dujra and new Capital Circle P.M.C.” The suit was decreed ex parte in favour of the plaintiff vide judgment and decree dated 11.12.1968/20.12.1968. After passing of the ex parte decree, the plaintiff-opposite party no.1 appeared and filed an application under Order 9 Rule 13 of the Code giving rise to Misc. Case No.01 of 1969 which was dismissed by judgment and order dated 14.7.1969 passed by learned Additional Munsif, I, Patna. Thereafter a Miscellaneous Appeal giving rise to M.A.No.149 of 1969/70/6 of 1969-70 under the provisions of Order 43 Rule 1(d) of the Code was filed against the judgment and order passed in the miscellaneous case and which again was dismissed under judgment and order dated 31.7.1970 by learned Ist Additional Subordinate Judge, Patna. The civil revision application preferred by the plaintiff-opposite party no.1 bearing C.R.No.1364 of 1970 with same prayer, was also dismissed by order dated 11.11.1970. Patna High Court C.R. No.149 of 2008 (13) dt.07-02-2013 5 The attempt of the plaintiff-opposite party no.1 in substantiating that the petitioner had obtained the decree by adopting unfair practices was thus negated up to the High Court. Undeterred, the plaintiff-opposite party no.1 filed the suit in question bearing T.S. No.195 of 1970 and while claiming a relief of declaration of possession over the suit property, the plaintiff- opposite party no.1 seemingly questioned the judgment and decree passed in T.S.No.53 of 1966/71 of 1968. In effect, the judgment and decree in the present suit would be of negating a judgment and decree passed in the previous suit. The schedule property in the present suit filed by the plaintiff-opposite party no.1 is as follows: Schedule-I Description of the disputed land. T.No.5225/14, 845, khata no.120, Plot No.432, holding No.392 Circle No.246 area .03 decimals having the following boundary: North – Jit Lal Mahto South - Budh Grih Nirman Society East- Mulchand at present Lachhminia and others West- Budh Grih Nirman Society It cannot be contested that the schedule property which was the subject matter of the judgment and decree in T.S.No.53 of 1966/71 of 1968 and that the present suit are the same. The statements made by the plaintiff in paragraph nos.25 to 47 of Patna High Court C.R. No.149 of 2008 (13) dt.07-02-2013 6 the plaint itself explain the foundational fact for maintaining the suit. It is perhaps in these circumstances that on repeated occasions, the defendants-petitioners who were plaintiff in T.S.No.53 of 1966/71 of 1968 sought to question the maintainability of the present suit on different grounds supported by legal provisions and which has been rejected by the trial court, inter alia, on grounds that being mixed issue of fact and law, the same would be adjudicated at the stage of final disposal. Mr. Mishra, learned counsel appearing on behalf of the petitioner in the two applications has raised a very limited issue. He submits that once the plaintiff-opposite party no.1 who was defendant in T.S.No.53 of 1966/71 of 1968 has lost his remedy available to him under the provisions of the Code by maintaining the miscellaneous case under order 9 Rule 13 of the Code followed by appeal and ultimately, by filing civil revision application, the suit in question raising identical issue and involving the same subject matter, is not maintainable. He relied upon the following judgments in support of his submission: