Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 494 (PAT)

Om Prakash Sah v. Deoki Devi Dugolia

2012-03-23

SHIVAJI PANDEY

body2012
ORDER Heard learned counsel for the petitioner and learned counsel for the respondents. 2. In this case, the petitioner is challenging the order dated 19.7.2011 passed by learned Munsif-II, Bhagalpur in Title Eviction Suit No. 10/2008 by which the court below has refused to decide the maintainability of the suit as preliminary issue. 3. In this case, one Deoki Devi had filed a Title Eviction Suit No. 10/2008 against the defendant. In the Eviction Suit, the defendant/petitioner has claimed that Deoki Devi is not original land holder rather the land holder is someone else so she has no right to file the Eviction Title Suit, meaning thereby the petitioner is challenging the Title of the plaintiff to file the Suit. 4. The petitioner has further submitted that as in the same circumstance, one Gomti Devi has also filed Title Eviction Suit No. 7/2005, and as such, in that view of the mater, it is not actually a Title Eviction Suit but by and large it is a Title Suit and issue of Title cannot be decided in the Eviction Suit. In support his contention the petitioner has relied on judgment reported in 2000 (2) PLJR 49 and 1985 PLJR 358 There is no quarrel in the proposition that Title of parties cannot be decided in the Eviction Suit. The petitioner had filed different applications earlier for different purposes but all failed. 5. The petitioner has raised maintainability of suit as preliminary which is based on question of fact and law. The court has recorded that the issue of maintainability of suit has been settled and the counsel for the petitioner accepts that altogether 4 witnesses have already been examined by the court below, in that view of the matter it would not desirable to ask the court below to decide the issue of maintainability as preliminary issue when the court below has already framed one of the issue of maintainability of the suit. 6. When the court below has itself has framed the issue of maintainability of the suit which will be decided at the time of final adjudication of the suit in that situation order impugned cannot be held illegal. Accordingly, this petition is dismissed. C.W.J.C. No. 16688 of 2011 7. In this case, the petitioner is aggrieved by the order dated 5.5.2011 passed in Misc. Accordingly, this petition is dismissed. C.W.J.C. No. 16688 of 2011 7. In this case, the petitioner is aggrieved by the order dated 5.5.2011 passed in Misc. Transfer Case No. 89/2010 passed by learned Sessions Judge, Bhagalpur whereby he has refused to make analogous the Title Eviction Suit No. 7/2005 and Title Eviction Suit No. 10/2008. In both suits, the plaintiffs are different but the defendants are the same. In Title Eviction Suit No. 7/2005 one Gomti Devi is the plaintiff and in Title Eviction Suit No. 10/2008 Deoki Devi is the plaintiff but both the cases have been filed against the petitioner. 8. The counsel for the petitioner submits that it will be for the ends of justice and there should be a lesser chance of conflicting judgment if both suits would be tried together. This Court is not of view to direct that both suits be made analogous but it is desirable that both the cases should be heard by one court so there would be less chance of conflict of judgment and also would be less inconvenience to the petitioner. It is, accordingly, directed that both cases should be transferred to one court. It is also expected from the court below where the case would be transferred, may give one date in both the cases so the defendant will be able to contest the case with less inconvenience. 9. It is made clear that both the cases will run separately and will not be made analogous. 10. Accordingly, this petition is disposed of with aforesaid observation and direction. ?