RAGHUNATH PRASAD Vs. RAKHI SAH

JUDGEMENT

(1.) This miscellaneous second appeal by the plaintiff arises from the order dated the 18th of December, 1964, passed by the Additional Munsif, Motihari, in Miscellaneous Case No. 27 of 1964. The learned Munsif by the said order allowed an application for restitution under Section 144 of the Code of Civil Procedure filed by Rikhi Sah, one of the defendants. Being aggrieved by the said order of the learned Additional Munsif, the plaintiff preferred Miscellaneous Appeal No. 2 of 1965, which was heard by the 2nd Additional Subordinate Judge of Motihari. The learned Additional Subordinate Judge by his order dated the 5th of March, 1966, dismissed the miscellaneous appeal. The plaintiff then preferred this miscellaneous second appeal in this Court.

(2.) It appears that the plaintiff filed Title Suit No. 105 of 1955/56 for declaration of title and recovery of possession in respect of 3 Dhurs of land of Survey plot No. 14, khata No. 2 of village Belwa Piperapati in the district of Champaran. The trial court dismissed the suit with costs. The plaintiff then preferred an appeal being Title Appeal No. 57/2 of 1955/57. The first appellate court allowed the appeal and decree the suit. The plaintiff then filed Execution Case No. 38/57 -365/57 and obtained delivery of possession over the suit land on the 30th of June, 1958. In the meantime, the said defendant being aggrieved by the judgment and decree of the first appellate court preferred a second appeal in this Court which was numbered as Second Appeal 502 of 1957. The High Court by its judgment the 12th of November, 1959, allowed the appeal and remanded the case to the lower appellate court for a fresh hearing of the appeal in accordance with law. The first appellate court after a fresh hearing of the appeal dismissed it by its judgment dated the 30th of April, 1960. The plaintiff thereupon preferred a second appeal in the High Court which was numbered Second Appeal 550 of 1960. That appeal was ultimately dismissed on the 12th of July, 1961. The application for restitution under Section 144 of the Code of Civil Procedure, which has given rise to the present appeal, was filed by the defendant on the 12th of June, 1964.

(3.) It appears that the plaintiff appellant filed a rejoinder to the petition for restitution which has been filed by the defendant. The plaintiff objected to the prayer of the defendant for restitution on two grounds, namely, (1) that the application for restitutions barred by limitation, and (2) that defendant Rikhi Sah was not entitled to claim restitution of the properties because the lower appellate court in its judgment dated the 30th of April, 1960, did not hold that the settlement with the defendant had been proved according to law. In other even according to the judgment of the lower appellate court and as such he was not entitled to claim restitution of the suit lands. The learned Munsif overruled both the objections and allowed the miscellaneous case, as already stated. The lower appellate court, agreed with the view of the learned Munsif on both the points and dismissed the appeal.