Patna High Court
Case Details
Patna High Court SA No.423 of 2012 (8) dt.02-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.423 of 2012 ====================================================== Deo Krishna Rai Versus .... .... Appellant/s The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Aditya Narayan Singh-1 For the Respondent/s : Mr. J.S. Arora Sc6 ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 8 02-08-2013
Legal Reasoning
Heard the learned counsel, Mr. Aditya Narayan Singh-1 appearing on behalf of the appellants and the learned counsel, Mr. Neeraj Kumar, A.C. to S.C.22 appearing on behalf of the respondents on I.A. No.3710 of 2013. This application has been filed by the appellant under Order 1 Rule 8 read with Section 151 C.P.C. praying for allowing the appellant to prosecute the appeal on behalf of the villagers of Khudru. The appeal has been filed against the judgment and decree dated 26.03.2012 passed by the learned Additional District Judge, F.T.C. III, Sasaram, Rohtas in Title Appeal No.68 of 2010 whereby the Lower Appellate Court allowed the appeal and set aside the trial court judgment and decree dated 17.05.2010 passed by learned Munsif, Bikramganj, Rohtas in Title Suit No.45 of 2004. It appears that the plaintiff-respondent no.1 filed the Patna High Court SA No.423 of 2012 (8) dt.02-08-2013 2 aforesaid suit for declaration of title over the suit property making the State of Bihar, Anchal Adhikari and Mukhiya Gram Panchayat as defendant in the suit. Originally the suit was dismissed by the trial court. The Lower Appellate Court has reversed the judgment of the trial court and the plaintiff’s suit has been decreed. It may be mentioned here that this present appellant, Deo Krishna Rai is not a party to the suit. From perusal of the application, it appears that the present plaintiff or the villagers are not claiming title over the suit property. Their only claim is that the property is being used by the public i.e. the villagers. This application has been filed for permission to file the appeal by the appellant on behalf of the villagers against the impugned judgment of the Lower Appellate Court. The learned counsel for the appellant relied upon three decisions and submitted that there is no stage prescribed for filing the application under Order 1 Rule 8 C.P.C. The first one is (2005) 12 Supreme Court Cases 180. On the strength of this decision, the learned counsel submitted that at any stage, the application under Order 1 Rule 8 C.P.C. can be filed. Secondly, the learned counsel relied upon (2004) 12 Supreme Court Cases 214=AIR 2004 Supreme Court 4316 and submitted that if the property is public property and is being used by the villagers, the Patna High Court SA No.423 of 2012 (8) dt.02-08-2013 3 suit can be filed by the villagers. On the same line, the learned counsel relied upon AIR 2009 NOC 1456 Bombay. Order 1 Rule 8 C.P.C. speaks about the filing of suit. Therefore, Order 1 is always applicable in respect of filing of suit. In the present case, the appeal is being filed by the present appellant on behalf of the villagers and now claim has been made by the villagers that the land is in use of the villagers. So far this claim is concerned, it is entirely a new case which cannot be decided in Second Appeal. This finding is dependent on the evidence. Without there being any evidence in Second Appeal, the said disputed question cannot be gone into. Moreover, Order 1 Rule 8 C.P.C. is not applicable in case of Second Appeal. All the decisions relied upon by the learned counsel for the appellant speaks about the filing of the suit. Moreover, here neither the appellant nor the villagers are claiming title over the suit property. Therefore, it cannot be said that their rights have been infringed or that they are aggrieved persons against the judgment and decree of the Lower Appellate Court. The rights of the public at large are being represented by the State of Bihar, the Anchal Adhikari and Mukhiya Gram Panchayat. The stand taken by the appellant is not different. Their case is that it is the public land which is being used by them. If it is public land then it is represented by the State Patna High Court SA No.423 of 2012 (8) dt.02-08-2013 4 of Bihar. It is another thing to say that the State of Bihar did not take any step against the claim of the plaintiff or against the impugned judgment of the Lower Appellate Court but thereby automatically the appellant will not get any right to file the appeal. At this stage, the learned counsel for the appellant relied upon another decision 1993(1) Calcutta Law Journal 279. So far this decision is concerned, it may be mentioned here that in that case, the plaintiff had not taken permission at the stage of the suit. Therefore, at the appellate stage, the court held that the plaintiff can be allowed to file the application under Order 1 Rule 8 C.P.C. In my opinion, therefore, this decision is not applicable in the present case. It may be reiterated here that the present appellant was not at all party to the suit. He is not claiming title on the suit property. The claim of the plaintiff is that it is public land and, therefore, the State of Bihar was party in the suit to protect the interest of the State of Bihar. The claim of the appellant i.e. right to user is concerned, it is for the first time raised before this court in second appeal under Order 1 Rule 8 C.P.C. Therefore, the present appellant is not at all aggrieved person. In such circumstances, he has no locus standi to present the Second Appeal. For Second Appeal, the person must be aggrieved and he must prove that his right has been infringed and he has an interest Patna High Court SA No.423 of 2012 (8) dt.02-08-2013 5 in the subject matter of suit. In my opinion, therefore, this Second Appeal filed by the present appellant is not maintainable and the present appellant has no locus standi to file the present appeal against the judgment of the Lower Appellate Court. Since the appeal is not maintainable, therefore, there is no question of permission under Order 1 Rule 8 C.P.C. arises. Moreover, Order 1 Rule 8 C.P.C. is not applicable in case of Second Appeal. Thus, this Second Appeal is dismissed as not maintainable. If the appellants have got any interest in any manner they may approach appropriate forum by initiate appropriate proceeding. (Mungeshwar Sahoo, J) Saurabh/-