Birendra Kumar Singh v. Hari Mahton And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.9830 of 2014 =========================================================== Birendra Kumar Singh S/o Late Kamla Singh Resident of Village Barunganj, P.S. Barun, District Aurangabad (Bihar). .... .... Petitioner/s

Versus

1. Hari Mahton S/o Late Tengri Mahton Resident of Village Mastul Barun, P.S. Barun, District Aurangabad (Bihar).

2. Narendra Kumar Singh

3. Satyendra Kumar Singh

4. Surendra Kumar Singh Sl. No. 2 to 4 S/o Late Kamla Singh Resident of Village Barunganj, P.S. Barun, District Aurangabad (Bihar)..... .... Respondent/s =========================================================== Appearance :

For the Petitioner/s : Mr. Mrigendra Kumar, Adv. For the Respondent/s : Mr.

=========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 20-06-2016 Heard Mr. Mrigendra Kumar, learned counsel for the petitioner.

The defendant is the petitioner in this application and has invoked the jurisdiction under Article 227 of the Constitution of India against the impugned order by which his prayer for deciding the question of maintainability of the suit as preliminary issue under Order 14 Rule 2 C.P.C. has been refused. The suit has been filed by the plaintiff for demarcation of the suit property in accordance with the sale deed of the plaintiff and the defendants as mentioned in schedules-I and II of the plaint. A Pleader Commissioner was appointed who, according to the submission by the learned counsel for the petitioner, has also

Patna High Court CWJC No.9830 of 2014 dt.20-06-2016 reported that the land as claimed by the plaintiff does not exist on the spot rather it is a Rasta. The defendants raised the objection that as the plaintiff did not seek the relief for declaration of title and possession over the suit land, this suit as framed cannot proceed and accordingly further prayed for trial of the said issue as preliminary issue.

The learned court below has come to the finding that only because the plaintiff has not sought relief for declaration of his title the suit cannot be held to be not maintainable for the said reason as the plaintiff will have to face the consequences in accordance with law. The learned court below has further also disposed of the petition filed by the petitioner directing the issue of maintainability of the suit to be considered along with the other issues arising in the suit between the parties at the time of final disposal of the suit.

This Court after considering the submissions and the materials on record, does not find that any illegality or material irregularity has been committed by the learned court below in passing the impugned order.

The application is, accordingly, dismissed.

(V. Nath, J) Devendra/- U