UGRA NARAYAN JAISWAL Vs. RAM CHANDRA PANDIT

JUDGEMENT

(1.) THIS appeal at the instance of the appellant is directed against the judgment dated 7.7.1997 passed in Title Appeal No. 2/5 of 1993/97 whereby and whereunder, the learned 2nd Additional District Judge, Godda set aside the order dated 15.4.1993 passed by the Sub -ordinate Judge, Godda in Title Suit No. 31 of 1991 and remanded the matter back to the trial Court.

(2.) FACTS briefly stated are that plaintiffs, who are respondents here, filed a Title Suit No. 31 of 1991 for declaration of title and confirmation of possession and/or in the alternative recovery of possession and for permanent injunction. Further prayer was made that orders passed by the Deputy Commissioner in RMA No. 12/81 -82 on 23.12.1981 and by Commissioner in R. Misc. Appeal No. 225/84 -85 on 29.4.1985 be declared as void, illegal and without jurisdiction. Further case of the plaintiff is that the disputed land originally belongs to Karulal Choudhary who died in the year 1930 leaving behind his Son Bahulal Choudhary, who also died in the year 1934 leaving behind his widow Manti Devi whose sons were defendants Nos. 3 to 6 in the Title Suit No. 31 of 1991, but they are appellants here. It was further contended on behalf of the plaintiffs that due to ill health, Babulal Choudhary had given possession of some lands to the father of the plaintiff and after the death of Babulal Choudhary, Manti Devi came in the possession of all the land except the disputed land. In February, 1937, Manti Devi executed Kurfa deed in favour of Bulla Pandit, but later on Manti Devi under pressure from her daughter and daughter 'sson, filed a Title Suit No. 92 of 1961 for recovery of possession of plot No. 79 and the same was dismissed in terms of compromise vide order dated 31.8.1961. Thereafter, name of the father of the plaintiff was mutated in Government records, Thereafter defendants Nos. 3 to 6 filed an application on 24.9.1979 under the provisions of Secs. 20 and 42 of the Santhal Praganas Tenancy Act, 1949 (hereinafter to be referred to as 'SPT Act ') for eviction of Bulla Pandit from plot No. 79 vide RER Case No. 510 of 1978 -79 before Sub -divisional Officer. Godda who dismissed the application. Then they Hied RMA No. 12/91 -82 before the Additional Deputy Collector. Sahebganj which was allowed vide order dated 23.12.1981. Being aggrieved by the order, Bulla Pandit filed an appeal being RMA No. 225 of 1985 before the Commissioner, Bhagalpur, but that was also dismissed vide order dated 22.4.1985/29.4.1985. Aforesaid order was challenged by the plaintiff vide CWJC No. 3221 of 1985 before the High Court, but Bulla Pandit died during the pendency of the appeal before the Commissioner and ultimately, the writ petition was dismissed as withdrawn vide order dated 1.8.1985 and thereafter the instant suit has been filed.

(3.) LEARNED counsel for the appellants while assailing the judgment submitted that in fact, in the suit a plea under Order VII. Rule 11 was taken up and Order VII, Rule 11 clearly provides for rejection of the plaint if a suit is barred by any provisions of law. Learned counsel further submitted that Sec. 63, SPT Act, which - is quoted hereinbelow : -