Husne Alam & Ors. v. Khudayaza Khatoon

…….Defendant 1st Set…Respondent

Sanjeev Kumar Singh 6. Rajesh Kumar Singh Both Sons Of Late Shambhu Sharan Singh 7. Reeta Kumari Singh Daughter Of Late Shambhu Sharan 8. Suryabanshi Devi Wife Of Late Radha Mohan Singh 9. Sanjay Singh 10. Arvind Kumar Singh Both Sons Of Late Radha Mohan Singh 11. Manju Devi 12. Ranju Devi 13. Suman Devi All Daughters Of Late Radha Mohan Singh Patna High Court CWJC No.18690 of 2012 (5) dt.16-12-2013 Respondent nos. 5 to 13 are Resident Of Bharthuhi Estate, P.O. And P.S.- Jiradei, District- Siwan

Parvez Alam 15. Dilshaid Alam …..Defendants 2nd set…Respondents Both Sons Of Ashrey Alam (petitioner no. 2). Residents Of Village- Pipra, P.O. And P.S.- Manjhagarh, District- Gopalganj 16. Sk. Aslam 17. Sk. Mahfooz 18. Sk. Fajle Haque All Sons Of Late Sk. Amdin 19. Ruksana Khatoon Daughter Of Late Sk. Amdin All Residents Of Village- Phulwariya, P.O. And P.S.- Manjhagarh, District- Gopalganj .... Defendants .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Satish Chandra Mishra and Mr. Nurul Hoda, Advocates For the Respondents No. 1 to 3 : Mr. Sudhansu Kumar Lal and Mr. Javed Aslam, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 5 16-12-2013 Heard Mr. Satish Chandra Mishra, learned counsel for the petitioners and Mr. Sudhansu Kumar Lal, learned counsel appearing for the respondents no. 1 to 3. In of the lis involved, being between the present petitioners-defendants and the plaintiffs-respondents no. 1 to 3, this Court is of the opinion that no notice is required to be issued Patna High Court CWJC No.18690 of 2012 (5) dt.16-12-2013 to the other respondents-defendants. The present application under Article 227 of the Constitution of India is directed against the order dated

01.08.2012 passed by the learned Sub Judge VI, Gopalganj in Title Suit No. 173 of 2009 by which the petition dated 08.09.2011 filed on behalf of the petitioners under Order XIV Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’), has been dismissed. Learned counsel for the petitioners submits that the suit was filed by the respondents no. 1 to 3, with regard to declaring the decree passed in Title Suit No. 76 of 1967 by the Munsif, Gopalganj in the year 1982 to be collusive, tainted with fraud, void ab initio and that the plaintiffs have the right title of the suit land and the defendants have no right title over the suit land and their possession over the same is also wrong and illegal. It is submitted by learned counsel for the petitioners that Krishna Bihari Singh, the vendor of the plaintiffs, with regard to the suit land, had filed Title Suit No. 76 of 1967 against Shambhu Sharan Singh and Radha Mohan Singh, both sons of Rajendra Prasad Singh.

The same was dismissed upon contest by judgment dated 19.07.1982 and decree dated 30.08.1982. It was challenged by one Baliram Singh who was the father of Krishna Patna High Court CWJC No.18690 of 2012 (5) dt.16-12-2013 Bihari Singh in Title Appeal No. 101 of 1982 and the same was dismissed for non-prosecution on 22.08.1994 whereafter the Misc. Case No. 14 of 1994 for restoration of the appeal was also dismissed for non-prosecution on 29.06.1995. The Second Appeal No. 145 of 1995 filed against the said order before the High Court was also dismissed on 22.08.1994. Learned counsel submits that thereafter Krishna Bihari Singh filed Title Suit No. 128 of 2001 for restraining the other side from disturbing them from the possession over the suit land. The said suit was dismissed on the principle of res judicata by the Court concerned on 21.05.2002. The challenge to the same before the High Court was also rejected on 24.02.2003 in Civil Revision No.

1681 of 2002. Learned counsel submits that in view of the aforesaid, the plaintiffs, who are the vendees from Krishna Bihari Singh, cannot maintain the suit for declaring a judgment and decree of the year 1982 in a suit of the year 1967 to be null and void and collusive since their vendor had tried to wriggle out of the consequences of the said judgment and decree unsuccessfully in the year 2001. Learned counsel submits that it would be an abuse of the process of the Court and accordingly an application was filed under Order XIV Rule 2 of the Code for deciding the issue of maintainability in view of the bar of Section 11 of the Code to hold that the suit itself Patna High Court CWJC No.18690 of 2012 (5) dt.16-12-2013 was not maintainable on the principle of res judicata. Learned counsel submits that the Court has dismissed the same holding that the same would be decided upon considering all the issues and that the decision of maintainability of the suit on the point of res judicate was not proper.

Learned counsel for the respondents no. 1 to 3 submits that they were in possession of the suit land despite the adverse decree against their vendor and since they were being adversely affected, in law they were entitled to file a suit for declaring the judgment and decree of the year 1982 to be collusive and ab initio void. Learned counsel submits that the issue is a mixed question of fact and law and rightly the Court had held that it could be decided along with the other issues. Upon hearing learned counsels for the parties, this Court is of the opinion that the Court has erroneously rejected the application filed by the petitioners for deciding the issue relating to res judicata as a preliminary issue. Once the vendor of the plaintiffs had lost a suit and against the said judgment and decree, in the appeal right uptill the High Court, no relief was given, the issue has attained finality.

Also in view of the fact that subsequently in the suit of year 2001, it has been held that the original judgment and decree of the year 1982 will act as res Patna High Court CWJC No.18690 of 2012 (5) dt.16-12-2013 judicata, the Court should have favourably considered the application of the petitioners and decided the question of maintainability of the suit on the principle of res judicata as a preliminary issue. In view of the aforesaid, the order dated 01.08.2012 passed by the learned Sub Judge VI, Gopalganj in Title Suit No. 173 of 2009 is set aside. The Court shall decide the issue with regard to maintainability of the suit on the principle of res judicata which shall be considered as a preliminary issue and decided in accordance with law after giving due opportunity to the parties to raise all points available to them with regard to the said preliminary issue. The application stands disposed off aforementioned terms. (Ahsanuddin Amanullah, J.) Anjani/-