DEEPAK KUMAR Vs. BINOD KUMAR SINHA

JUDGEMENT

(1.) DEFENDANTS no. 4 and 5 are the petitioners against the order dated 9.8.2001 passed by the 3rd Subordinate Judge, Muzaffarpur, in Title Suit No. 79 of 1988, by which the application filed by the petitioners under Order VIII, Rule 6 -A of the Code of Civil Procedure (hereinafter referred to as 'the Code') has been rejected.

(2.) THE plaintiff -opposite parties filed Title Suit No. 79 of 1988 with regard to the property described in the schedules of the plaint, challenging the order passed by the Superintendent of Survey, Muzaffarpur, on 30.4.1977 against them as well as the Survey Khatian prepared on the basis of the said order. They also made an alternative prayer that in case the Court finds that there was no previous portion, then a preliminary decree may be passed for partition giving half share to the plaintiffs.

(3.) LEARNED counsel appearing for the petitioners submitted that the cause of action to file the counter claim arose after the plaintiffs filed two Kiraynamas and as such the court below has committed a jurisdictional error in rejecting the counter claim on the ground of delay. However, he has not been able to satisfy this Court that the final publication has been made under section 26 -A of the Act and as such entertainment of the suit under section 4(c) of the Act is not barred.