GIRISH NARAIN CHAUDHARI Vs. ROJAI

JUDGEMENT

(1.) UMESHWAR Pandey, J. Heard Sri H. N. Singh Advocate for the appellant and Sri Manish Nigam holding brief of Sri B. D. Pandey for the respondents.

(2.) THE judgment and decree passed by the lower appellate Court dated 11-9-2006 are challenged in this second appeal whereby the Court below has dismissed the appellant's first appeal confirming the judgment and decree passed by the trial Court.

(3.) WHILE replying to the aforesaid arguments raised from the side of the appellant, the Counsel appearing for the respondents- defendants referred to the provisions of sub-section (2) of Section 91 of the Code and has submitted that the provisions of sub-section (1) will not apply in the cases nor would limit the right of the defendants to sue in such matters where they have independent right in the subject matter of the suit property. The learned Counsel in support of his contention has cited the case law of Sri Ram Singh & Ors. v. Smt. Patti & Ors. , AIR 1968 Allahabad 18 and Smt. Bhagwanti v. Mst. Jiuti & Anr. , AIR 1975 Allahabad 341. On the strength of these legal proposition of this Court, the learned Counsel HAS tried to emphasise that in the present case since the defendants- respondents did possess their independent right in the disputed land by using it as a Rasta land since before the time of consolidation operation, their rights for suing plaintiff- appellant in the counter claim could not be affected under the provisions of Section 91 of the Code of Civil Procedure. It is also submitted by the learned Counsel that this plea of bar against the counter claim of the defendants was never raised by the plaintiff at the trial stage or at the first appellate stage before the Courts below. Therefore, in the light of the case law of Kella Peda Appayya & Ors. v. Lanka Narasimhalu & Ors. , AIR 1938 Madras 338, such objections cannot be raised at the second appellate stage and the suit would be held maintainable even if it is found that there is some implication of bar of Section 91 C. P. C.