Patna High Court - Orders
Satish Chandra Sinha vs Awadesh Prasad Singh & Ors on 25 November, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.187 of 2008
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Satish Chandra Sinha S/o Baleshwar Singh
Secretary Siksha Samitee, Middle School of Village- Maniawan,
P.O.- Deepnagar, P.S.-Nalanda, District-Nalanda.
-- Defendant-petitioner.
Versus
1. Awadesh Prasad Singh s/o Late Danurdhari Singh
2. Siyasaran Singh S/o Bindeshwari Singh.
3. Yogendra Prasad Singh S/o Late Sitaram Singh
4. Subodh Prasad Singh S/o Late Rajendra Singh.
All are resident of villagers of Maniyarawan, Post Office-
Dipnagar, District-Nalanda.
--Plaintiffs-Opposite parties 1st Set.
5. The State of Bihar.
6. The District Collector, Biharsharif (Nalanda).
7. The District Education Officer, Biharsharif (Nalanda)
8. The Zila Sarb Siksha Abhiyan Officer, Biharsharif (Nalanda).
9. The Headmaster Middle School
Resident of Village- Maniyawan, P.O. -Dipnagar, District-
Nalanda.
--Defendants-opposite parties 2nd Set.
10. Smt. Kanchan Mala W/o Ashok Kumar
President Education Committee, Middle School Maniyawan.
Village- Maniyawan, P.S. Nalanda, District-Nalanda.
--Defendant-opposite party 3rd Set.
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For the petitioner : Mr. Surendra Kumar with
Mr. Nagendra Prasad Sinha, Advocates.
For the opposite parties : None.
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02. 25.11.2009Heard learned counsel for the petitioner.
2. This civil revision has been filed by the defendant- petitioner challenging order dated 03.12.2007 by which the learned Subordinate Judge-I, Nalanda rejected his application under Order VII Rule 11 of the Code of Civil Procedure ( hereinafter referred to as 'the Code' for the sake of brevity) for rejection of the plaint of Title Suit No.52 of 2007.
3. The aforesaid suit was filed by plaintiffs no.1 to 4 -2- (opposite parties 1st Set) for declaration of title, permanent injunction and cost as is apparent from the plaint (Annexure-1). The said suit has been contested by the defendants.
4. It further transpires that during the pendency of the aforesaid suit an application under Order VII Rule 11 of the Code was filed by the defendant-petitioner on 15.03.2007 for rejection of the plaint on the ground that the claim of plaintiffs rests upon registered sale deed dated 13.03.1958 and hence the plaintiff had no right to sue unless the said sale deed is declared null and void by any court of competent jurisdiction. Thus, it was claimed that no cause of action was disclosed with respect to the aforesaid sale deed and the suit was barred by the law of limitation as it was filed in the year 2007, i.e. after about 49 years of the sale deed dated 13.03.1958 said to have been executed in favour of Rameshwar Singh, Secretary of the Committee managing the Middle School, Miniyawan, Nalanda and also another sale deed of the same date, i.e. 13.03.1958 executed by Rameshwar Singh in favour of the Governor of Bihar.
5. A rejoinder to the said application was filed by the plaintiffs on 12.04.2007, whereafter the said application filed by the defendant-petitioner dated 15.03.2007 was rejected by the learned court below vide its order dated 03.12.2007 against which the instant civil revision has been filed.
6. Learned counsel for the petitioner vehemently challenges the said order of the learned court below stating that the foundation of the suit was clearly the aforesaid registered sale deeds of the year 1958, but neither the said sale deeds were challenged nor -3- any cause of action with respect thereof had been mentioned and the claim of the plaintiff was barred by the law of limitation in the aforesaid facts and circumstances. In this connection, he relies upon a decision of the Hon'ble Apex Court as well as a decision of this court in case of N.V. Srinivasa Murthy and Ors Vs. Mariyamma (dead) by proposed LRs and Ors., reported in 2006 (1) P.L.J.R (SC) 1 as well as in case of Bachha Sah Vs. Manohar Thakur & Ors, reported in 2006(4) PLJR 102.
7. From the aforesaid averments as well as from the materials on record including the plaint (Annexure-1) it is quite apparent that the foundation of the instant suit was not the aforesaid sale deed, rather the plaint clearly showed that the foundation of plaintiffs' claim was their inheritance from their ancestors. In the said circumstances, the aforesaid case laws are not applicable to the facts and circumstances of the case as the aforesaid case laws were with respect to claim of the plaintiff of that suit that fresh cause of action had arisen after the mutation proceeding which was clearly a camouflage.
8. It is also apparent from the record that in the instant case the abovementioned sale deeds of 1958 were merely to be avoided claiming to be ab initio void and hence there was no occasion for seeking any relief of setting aside the said sale deeds. Hence when the said sale deeds were not being challenged the bar of the Limitation Act was not at all attracted.
9. In the said circumstances, this court does not find any illegality in the impugned order of the learned court below, nor -4- does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed.
Sunil (S. N. Hussain, J.)