MAHABIR SAHNI Vs. BABU LAL SAHNI

JUDGEMENT

(1.) This application under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') has been preferred by Mahabir Sahni, who is defendant third party in Title Suit No. 27 of 1968 against the order dated the 23rd of August, 1969, passed by the Subordinate Judge in the said title suit holding that whether notice under section 80 of the Code would be required or not shall be decided at the time of the hearing of the main suit and shall not be decided as a preliminary point.

(2.) In order to appreciate the points involved in this application, it will be necessary to state briefly the facts. Babulal Sahni and three others, who are opposite party Nos. 1 to 4 in this application as plaintiffs filed the said title suit for declaration of title over the suit lands measuring about 10 bighas which contain a pond and for restraining the defendant third party, namely, the petitioner and the defendants first and the second parties, who are the State and its officials from interfering with their possession. They are also parties in this application, as opposite parties. It may be noted that the petitioner is the settlee of 8 bighas and odd out of the lands in dispute for three years, the term of which is expiring on the 30th of September, 1970. It is the case of Opposite Party Nos. 1 to 4 that they had purchased on the 25th of January, 1963 the disputed land and got their names mutated in the Government records, but the petitioner after obtaining the aforesaid settlement from the State ot Bihar tried to interfere with the peaceful possession of opposite party Nos. 1 to 4 which led to proceedings under Sections 144 and 145 of the Code of Criminal Procedure. Thereafter, the aforesaid opposite party Nos. 1 to 4 filed the said title suit on the 1st of February, 1968, but the plaintiffs did not send notice to the State of Bihar or its officials, who are defendants first and second parties in the suit prior to the filing of the suit. The reasons for not doing so have been stated by them in paragraph 22 of the plaint. Subsequent to the filing of the suit the plaintiffs also filed. an application on the 7th of February, 1968 for restraining defendants first, second and third parties by issuance of injunction from interfering with the peaceful possession of the plaintiffs of the suit land. The trial court on the same date granted ad interim injunction. Subsequently, after hearing both the parties, it made the ad interim injunction absolute by its order dated the 27th of November, 1968. Aggrieved by the said order the defendant third party preferred an appeal before the District Judge, who after hearing the parties affirmed the order of the trial court on the 20th of December, 1968. Aggrieved by the order of the District Judge, the defendant third party appellant preferred a revision in this Court which was registered as Civil Revision No. 139 of 1969. When the civil revision application was placed before Hon'ble Mr. Justice A. Ahmad for hearing the defendant third party petitioner withdrew his application on the 30th of June, 1969, and he was allowed to withdraw his application by his Lordship and at the same time his Lordship passed the following orders:-- "......The Subordinate Judge, Darbhanga is directed to expedite the hearing of Title Suit No. 27 of 1968 as far as possible". When the record of the case was transmitted to the Court below, the defendant third party petitioner on the 25th of July, 1969 filed an application for deciding as a preliminary issue whether a notice under Section 80 of the Code was required or not. The trial court after hearing both the parties by the impugned order held-- "......As regards hearing of issue relating to service of notice under Section 80, C. P. C. as a preliminary issue, it is better if this issue is heard along with other issues at its proper time. The petition relating to it is accordingly disposed of."

(3.) Mr. Indu Shekhar Prasad Sinha, learned counsel appearing for the petitioner assailed the above order and contended that the order is not passed under the terms of Order XIV. Rule 2 of the Code which reads as under:--