KAULESHWARI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard the learned senior counsel, Mr. K.D. Chatterjee, appearing on behalf of the petitioner and the learned counsel, Mr. Prabhat Bharti, A.C. to G.P. 23 on behalf of the respondent Nos. 1 and 2. Since only respondent Nos. 1 and 2 are interested in this case, no notice is issued to respondent Nos. 3 and 4. This application under Article 227 of the Constitution of India has been filed by the plaintiff petitioner against the order dated 23.2.2012 passed by the learned Sub-Judge-IIIrd, Gaya in title suit No. 51 of 1998 whereby the application filed by the respondents No. 1 and 2 i.e., the State of Bihar and the Collector, Gaya was allowed.

(2.) The learned senior counsel appearing on behalf of the petitioner submitted that initially the plaintiff filed the aforesaid suit for declaration of title and confirmation of - possession and injunction over the suit property which was decreed by the trial Court. The trial Court decreed the suit. The original defendant who are respondent Nos. 3 and 4 in this writ application bad filed title appeal before lower appellate Court being title appeal Nos. 8 of 2004/7 of 2004. The lower appellate Court after allowing the appeal remanded the matter to the trial Court on a limited question to decide, i.e., the question of limitation. At this stage, the State of Bihar through Collector Gaya filed the application for being added party defendant in the suit which has been allowed by the trial Court without considering the settled principle of law laid down by the Hon'ble Supreme Court. According to the learned counsel if the State of Bihar is allowed to be added as party then there will be de novo trial of the suit again. Moreover plaintiff being the dominus litis cannot be forced to fight the litigation against a person against whom the plaintiff is not claiming any relief. Moreover, the State of Bihar had filed title suit No. 134 of 2004 for declaration that the decree passed in title suit No. 51 of 1998 is fraudulent and collusive on the ground that in fact the suit property was acquired by the State of Bihar in a proceeding initiated under Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The said title suit was dismissed for non-payment of Court fee in the year 2005. The plaintiff, i.e., State of Bihar did not file the required Court fee, therefore, it will amount to rejection of the plaint according to the provision as contained in Order 7, Rule 11, Clause 'C', C.P.C. and according to Section 2 subsection 2, it is a decree. The same defence is being sought to be introduced by the State of Bihar respondent in this suit, and therefore, the application under Order 1, Rule 10 sub-rule 2 C.P.C. has been filed by the State of Bihar. According to the learned counsel, the deemed decree, i.e., rejection of plaint in title suit No. 341 of 2004 will operate res judicata. In support of his contentions, the learned counsel relied upon, Anokhe Lal vs. Radhamohan Bansal, 1997 AIR(SC) 257

(3.) On the other hand, the learned counsel appearing on behalf of the State of Bihar submitted that the trial Court has exercised jurisdiction under Order 1, Rule 10 of C.P.C. recording a finding that the State of Bihar is necessary party, therefore, the order passed by the Court below cannot be interfered with in exercise of jurisdiction under Article 227 of the Constitution of India.