Patna High Court - Orders
Ramashray Singh & Ors vs Brij Bihari Singh & Ors on 14 July, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.1068 of 2007
1. Ramashray Singh, son of late Nauzadik Singh
2. Jitendra Kumar
3. Ranjay Kumar
4. Birendra Kumar alias Pappu Kumar
Sons of Ramashray Singh
5. Shanti Dedvi, wife of Ramashray Singh,
All residents of village Pathahi, P.S. Punpun,
Post Office Basuhar, District Patna.
......Defendants 2nd Party-Petitioners.
Versus
1. Brij Bihar Singh
2. Bijay Bihar Singh
Both sons of late Shatrughan Singh
3. Surendra Bihari Singh
4. Upendra Bihari Singh
5. Jitendra Bihari Singh
All sons of late Bipin Bihari Singh
All residents of village Pathahi, P.S. Punpun, P.O. Basuhar, District
Patna, at present village Dharhara, P.S. Punpun,P.O. Basuhar,
District Patna.
......Plaintiffs-Opposite Parties.
6. Mostt. Jankuri Devi, wife of late Mahendra Pd. Singh
7. Nagendra Singh
8. Ram Binay Singh
Sons of late Mahendra Prasad Singh
All residents of village Doripur, P.S. Masaurhi, P.O. Masaurhi,
District Patna.
9. Smt. Kamlata Devi, daughter of late Mahendra Pd. Singh ,
And wife of Satish Kumar Singh, resident of village Kamalapur,
P.S. Punpun, P.O. Barah, District Patna, at present vidllage Parthoo,
P.O. Parthoo, P.S. Pipra, District Patna.
10. Rubi Devi, daughter of late Mahendra Prasad Singh and wife of
Baldeo Singh, resident of village Tulsichak, P.O. Gangachak, P.S.
Masaurhi, District Patna.
11. Arti Devi alias Sheela Devi, alias Babli, daughter of late Mahendra
Prasad Singh and wife of Sri Vijay Pratap Singh alias Mukhia
Singh, resident of vidllage Manoharpur Decorators shops, P.O. and
P.S. Bettiah, Distt. West Champaran, Bettiah, at present vildlage
and P.O. Mangalpur (Gudaria ),P.S. Nautan, District West
Champaran (Bettiah).
12. Savita Devi alias Shsolata, daughter of late Mahendra Pd. Singh,
And wife of Raj Niranjan Singh, resident of village and post
Office Jarkha, P.S. Sigori, District Patna.
......Defendants Ist Party-Opp. Parties.
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For the Petitioners : Mr. Shyam Kishore Sinha, Advocate
For the Opp. Party : None.
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02/ 14.07.2009Heard learned counsel for the petitioners.
2. I.A. No. 3908 of 2009 has been filed on behalf of the petitioners for stay of further proceeding of Title Suit No. 424 of 2003, which is pending before the learned Subordinate Judge-III, Patna.
3. This civil revision has been filed by the defendant 2nd party-petitioners challenging order dated 02.04.2007, by which learned Subordinate Judge-III, Patna dismissed their application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint of Title Suit No. 424 of 2003 as being barred by law of limitation.
4. The aforesaid title suit was filed by the plaintiffs- opposite parties first set for declaration of their title and confirmation of possession and in case they are dispossessed during the pendency of the suit for recovery of possession and also for ad interim injunction, cost and any other relief available.
5. During the pendency of the suit, the plaintiffs filed an application dated 25.01.2004 stating that they have been dispossessed from the suit land by defendants no. 8 to 12, whereafter, they also paid ad valorem court fee for the relief of recovery of possession. Much thereafter, the aforesaid defendant 2nd party filed an application under Order VII Rule 11 of the Code of Civil Procedure on 29.11.2006 for rejection of the plaint on the ground that no ad valorem court fee had been paid and the suit was barred by limitation.
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6. The learned court below after considering the respective claims of the parties has rejected the said application by its impugned order holding that the plaintiffs have already filed the ad valorem court fee for the relief of recovery of possession and in the facts and circumstances of this case the question of limitation being a mixed question of law and fact evidence has to be led in that regard and only thereafter such matter could be decided. This order has been challenged by the defendants second party in the instant civil revision.
7. It transpires that after pleadings were complete, issues were framed and evidence is going on all the issues involved in the suit. Hence, the defendants-petitioners do not have any prima- facie case nor any loss is going to accrue to them if the suit continues. Hence this Court does not find any reason to stay the further proceeding of the title suit during the pendency of this civil revision.
8. Accordingly, I.A. No. 3908 of 2009 is hereby rejected.
MPS/ ( S. N. Hussain, J. )