KANTI DEVI Vs. SITAL PRASAD

JUDGEMENT

(1.) This appeal is directed against the judgment dated 19th December 1987, passed by the 4th Additional District Judge, Patna, in Title Appeal No. 12 of 1985, confirming the judgment dated 19th December 1984, rendered by the 1st Addl Munsif, Patna, in Title Suit No. 60 of 1982. The defendant of the suit Ram Sewak Mistry is the appellant before this Court

(2.) The respondents of the appeal before this Court had filed the suit seeking the declaration that the judgment passed in Eviction Suit No. 49 of 1972 was not binding on them The Plainitff Nos. 1 to 4 were claiming themselves to be members of the general public, Plaintiff No. 6 was Bharat Mata Mandali (deity) and Plaintiff No. 5 was the member of the Managing Committee of the aforesaid deity A piece of land measuring 554 sqr. feet at the Langer toli Chaurasta was the suit land, it was the case of plaintiff-respondents that over this place of land, earlier there was a Tulsi Chaura and a peepal tree. The members of the public used to hold Pooja etc. at this Tulsi Chaura and some musical programmes were also organised at this Tulsi chaura (Platform) In course of time, this Peepal tree fell down In the year 1928, Patna Municipal Corporation took over the aforesaid land However, the members of the public used to self up temporary deities during Dashara festival. There was a Pooja Committee and it was later replaced by Bharat Mata Commiittee and the deity of Bharat Mata was installed. Deity of Lord Shiva, Lord Mahabir etc were also set up There were certain temporary structure known as Katras (blocks) when were under tenancy of B.N Arya and Indradeo Singh. These persons used to pay rent to the Pooja Committee. During the course of Dashara festival, the Katras used to be demolished and the deity of Devi used to be installed. After Dashara, the Katras used to be set up again and the tenants used to pay rent to the plaintiff. However, one Shailendra Nath who was owner of Plot No. 770 sold this plot to Ram Sewak Mistry who filed Eviction Suit No 48 of 1970 and 49 of 1970 and obtained decree against tenants One Gorakh and Lakshmi allegedly were the sub-tenants over the subject matter of the suit in the Eviction Suit No 49 of 1970 and Ram Sewak Mistry secured decree of eviction against them The plaintiffs wanted to be impleaded as party to the aforesaid eviction suit, but they were not allowed to be impleaded They went in revision before the High Court which directed them to seek their confirmation title by a separate suit. So the suit under appeal was filed seeking declaration that the decision in Titile Suit No. 49 of 1970 was not binding upon them and that the defendants be restrained from interfering with the plaintiffs possession over the suit premises by or under the aforesaid decree. It was further sought that the defendant be restrained from dispossessing the plaintiff from the suit premises which was sought to be recovered in Execution Case No. 3 of 1979, pending in the Court of Additional Munsif, IV, Patna.

(3.) So the aforesaid reliefs sought by the respondents was a suit for declaration of their title on the garb of the relief, which they had sought. In the concerned execution case, the plaitniffs were not a party nor they were in the suit. The execution case was levied against so called subtenants of Indradeo Singh who were Lakshmi and Gorakh. So unless the decision of aforesaid T.S. No 49 of 1970 was not set aside nor any suit was filed to get this decree set aside, I fail to understand how the plaintiffs will seek a declaration that the concerned Gorakh and Lakshmi could not be evicted from suit-premises It is also not understandable how the defendant-appellant Ram Sewak Mistry will be restrained from interfering with the possession of the plaintiffs, when he has already a decree in Eviction Suit No. 49 of 1970. In the instant suit, the question simply was whether the suit land was the same which was the suit land of eviction Suit No 49 of 1970. Ram Sewak Choudhary had obtained a decree on the ground that he had purchased Plot No. 770 from Shailendra Nath and Gorakh and Lakshmi were sub-tenants under Indradeo Singh who was tenant under Shailndra Nath So if the plaintiff-respondents of the appeal before this Court wanted to restrain Ram Sewak Chaoudhary, they will have to show that the suit land of the present suit was the same that was over Plot No. 770 over which Ram Sewak Mistry had obtained decree in T.S. No. 49 of 1970. The description of suit land as given in the plaint of the suit under appeal will show that it was a piece of land measuring 554 sqr. feet It was described in Schedule-I of the plaint. This land was bounded by road on the north On the south of this land, there was 'Gold House'. On the east there was Langertoli Chauraha. On the west, there was the premises in question in occupation of Kishori Singh and other sons of Indradeo Singh. So according to description of the suit land, Indradeo Singh and Kishori Singh whose sub-tenants were described to be Gorakh and Lakshmi in T.S. No. 49 of 1970, were holding their tenancy land on the west on the suit land, Kishori Singh was the plaintiff in Eviction Suit No. 78 of 1970. Indradeo Singh was defendant, in T.S. No. 49/70. So if these persons were holding their tenancy land contiguous west to the suit land, it is not understandable how these persons will be on the suit land. If, however, Lakshmi and Gorakh were having any tenancy Katras on the suit land itself, plaintiffs should have described in specific terms that these persons were their tenants and Ram Sewak Mistry had no right to evict them and then they should have sought the setting aside of the decree of Title Suit No. 49 of 1970 which was passed against them at the instance of Ram Sewak Mistry (Plaintiff of that suit). Moreover, Ram Sewak Mistry was claiming only Plot No. 770 on the basis of purchase from Shailendra Nath. No plot number has been mentioned in the suit filed by the plaintiff respondents So if they were not claiming the Plot No. 770, it was submitted before me by the appellants lawyer that they had no grievance against the judgment of the Courts below I shall examine this aspect later. At this stage, it has been seen above that no plot has been mentioned in the Schedule of the plaint and it has not specifically been mentioned in plaint that Gorakh and Lakshmi were tenants of the suit land, as described in Schedule-I, in specific terms, in any paragraphs of the plaint. In such a circumstances, the plaintiff-respondents had to show that Ram Sewak Mistry was not entitled to seek eviction of Corakh and Lakshmi from the suit- premises of T.S. No. 45 of 1970, and also to show that the suit lands were subject matter of T.S. No. 49 of 1970