Md. Samsul Haque v. Bibichanda Khatoon And ANR

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1181 of 2016 ====================================================== Md. Samsul Haque .... .... Petitioner

Versus

Bibichanda Khatoon & Anr .... .... Respondent/s ====================================================== Appearance :

For the Petitioner : Mr. Krishna Kant Singh, Advocate For the Respondent/s :

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 28-11-2016 Heard learned counsel Mr. K.K. Singh, for the petitioner.

Perused the impugned order dated 13.07.2016 passed by the learned Sub-Judge-Ist, Muzaffarpur in Misc. Case No. 7 of 2015 filed by the petitioner under Section 151 of CPC. It appears that the plaintiff-respondent filed suit for declaration of title against the defendant-respondent no.2. The suit was decreed on compromise. The petitioner is stranger to the suit. After compromise decree, he filed application under Section 151 of CPC praying for setting aside the compromise decree. By the impugned order the court below has rejected the said Miscellaneous Case No. 7 of 2015 recording a finding that it is not maintainable because firstly the petitioner is not party to the suit and secondly that the miscellaneous case is barred by law of

Patna High Court C.Misc. No.1181 of 2016 (2) dt.28-11-2016 limitation.

The learned counsel Mr. K.K. Singh, for the petitioner submitted that one Bibi Khatoon since deceased had orally gifted the suit property in favour of the present petitioner. His name has been mutated, but the plaintiff did not make him party in the suit and got it compromise with the defendant. So far the question raised by the petitioner is concerned, it may be mentioned here that the petitioner is not a party to the suit. The alleged donor namely, Bibi Khatoon is also not a party to the suit. In such circumstances unless the petitioner get his title declared with respect to the suit property at his instance, the miscellaneous case will not be maintainable and the learned court below has rightly held so since in the compromise decree the petitioner is not party, it will not be binding on him. The allegation made by the learned counsel that the plaintiff playing fraud on court got the compromise decree is concerned, it cannot be investigated in the present miscellaneous case because the petitioner has got no relation with the suit property till he gets his title declared.

Therefore, if so advised, the petitioner may initiate appropriate proceeding before appropriate forum in getting his

Patna High Court C.Misc. No.1181 of 2016 (2) dt.28-11-2016 title declared and that remedy is available to him. Thus, I find no reason to interfere with the impugned order.

Accordingly, this civil Miscellaneous application is dismissed with the aforesaid observation.

(Mungeshwar Sahoo, J.) ravi/- U T