Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.39363937 OF 2019
(@ SPECIAL LEAVE PETITON (CIVIL) NOS .99299930 OF 2019)
[D. NO. 4632 OF 2018]
Om Prakash Ram .....Appellant
Versus
The State of Bihar & Ors. Etc. .....Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Delay condoned.
2. Leave granted.
3. The father of the fifth respondent herein, Sidheshwar
Prasad, i.e. the late Brhamdeo Narayan, at the first instance, filed
Title Suit No. 105/1970 for declaration of title, restoration of
possession and for eviction of the predecessorininterest of the
appellant and certain other persons in the year 1970 in respect of
the disputed property, which came to be dismissed on
Signature Not Verified
09.06.1971. The same person, i.e., Brhamdeo Narayan, filed
Digitally signed by
SATISH KUMAR YADAV
Date: 2019.04.15
16:13:50 IST
Reason:
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another suit in the year 1988 (i.e. after 17 years) for declaration
and for injunction against the appellant herein and the State
Authorities in respect of the disputed property. The said suit
(renumbered as Title Suit No. 32/1993), with the fifth respondent
and his mother and brother brought on record as the legal
representatives of the original plaintiff after his death by means
of substitution, came to be decreed exparte against the appellant
and others on 06.06.1994. No notice was served on the
defendants in the said suit. On 21.11.1994, the appellant herein
filed what eventually came to be numbered as Miscellaneous
Case No. 6/1999, for setting aside the exparte judgment and
decree dated 06.06.1994 passed against him. After a longdrawn
trial in Miscellaneous Case No. 6/1999, the same came to be
allowed on 21.05.2003, and consequently the exparte decree
passed against the appellant and others on 06.06.1994 in Title
Suit No. 32/1993 was set aside, and the said title suit was
restored to its original file and number. It was specifically held
that notice had not been served on the appellant herein (a
defendant in the Title Suit No. 32/1993). On 29.08.2006, the
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said suit (by now renumbered as Title Suit No. 01/2003) was
dismissed.
4. Meanwhile, taking advantage of and based on the exparte
decree dated 06.06.1994, the fifth respondent initiated three
proceedings (i.e. demarcation, writ and contempt). He first
initiated Demarcation Case No. 49/1997 before the demarcation
Court, praying for the demarcation of R.S. Plot No. 313 (i.e. the
disputed property), for the erection of a boundary wall, and for
the fixing of permanent pillars. In the said demarcation case,
neither the appellant nor his predecessorininterest were made
parties. The demarcation case was allowed on 08.01.1998, with
directions for getting R.S. Plot No. 313 demarcated and for the
submission of a report. Though such direction was issued by the
demarcation Court on 08.01.1998 in favour of the fifth
respondent, the same was not implemented by the concerned
authorities, probably due to the pendency of Miscellaneous Case
No. 6/1999. Hence, the fifth respondent next approached the
High Court of Judicature at Patna in CWJC No. 3221/2003 for a
direction to implement the order passed in Demarcation Case No.
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49/1997. In the said writ petition also, the fifth respondent did
not implead either the appellant or his predecessorininterest.
The writ petition came to be allowed on 10.01.2008 by the High
Court of Judicature at Patna with a direction to implement the
order passed in Demarcation Case No. 49/1997. However, the
order passed in this writ petition was also not implemented.
Hence, finally, the fifth respondent moved a contempt petition in
the form of Miscellaneous Jurisdiction Case No. 5323/2011
before the High Court of Judicature at Patna, in which a direction
was issued on 16.12.2015 to the District Magistrate, Gaya as well
as the Superintendent of Police, Gaya to implement the order of
demarcation in Case No. 49/1997, and order dated 10.01.2008
in CWJC No. 3221/2003. The orders passed in the demarcation
case and the writ petition were subsequently implemented. The
possession of the demarcated property was also handed over in
favour of the fifth respondent, that is to say, the appellant came
to be dispossessed pursuant to the order dated 16.12.2015.
It is relevant to note that the appellant was not made a
party in Title Suit No. 01/2003, CWJC No. 3221/2003 or
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Miscellaneous Jurisdiction Case No. 5323/2011, and
consequently, the appellant did not have notice with respect to
any of these proceedings. However, the appellant did file Civil
Review No. 21/2011 in CWJC No. 3221/2003 on gaining
knowledge of the order dated 10.01.2008, highlighting the
suppression of material facts by the fifth respondent as noted
above, but the same was dismissed with the clarification that if
the orders underlying the demarcation proceedings had been
superseded subsequently, the later adjudication would naturally
prevail, and the appellant could point out the same to the
relevant authorities involved in the dispute.
The appellant thus came to be dispossessed based on the
orders passed in the above proceedings. As mentioned supra, the
orders passed in Demarcation Case No. 49/1997, CWJC No.
3221/2003 and Miscellaneous Jurisdiction Case No. 5323/2011
were all passed based on the exparte decree dated 06.06.1994.
5. We may repeat for the sake of convenience that
Miscellaneous Case No. 6/1999 filed by the appellant praying for
setting aside the exparte decree passed on 06.06.1994 in Title
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Suit No. 32/1993 (renumbered later as Title Suit No. 01/2003,
as noted previously) was ultimately allowed on 21.05.2003,
holding that notice was not served on the defendants in the said
title suit, including the appellant herein, and the exparte decree
was set aside and restored to its original file and number.
Furthermore, the Title Suit No. 01/2003 was dismissed vide
order dated 29.08.2006. If it is so, the order passed in
Demarcation Case No. 49/1997 and the subsequent orders
passed in CWJC No. 3221/2003 and Miscellaneous Jurisdiction
Case No. 5323/2011, which were passed based on the exparte
decree in the title suit, are also liable to be set aside, and
possession needs to be restored in favour of the appellant.
6. In this backdrop, the appellant filed CWJC No.1806/2016
before the High Court of Judicature at Patna for recalling the
order dated 10.01.2008 passed in CWJC No. 3221/2003 and the
order dated 16.12.2015 passed in Miscellaneous Jurisdiction
Case No. 5323/2011. Unfortunately, the High Court dismissed
the writ petition vide order dated 29.03.2016 with costs of
Rs.25,000/, with a direction to the District Collector, Gaya to
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recover the amount from the appellant. The said order was partly
confirmed by the Division Bench of the High Court of Patna in
LPA No. 831/2016 vide order dated 06.06.2016, only being
modified in terms of setting aside the costs imposed, as the
counsel for the appellant had limited his argument to this issue.
The same was confirmed in Civil Review No. 563/2016 vide order
dated 20.11.2017, dismissing the appellant’s prayer to decide the
matter on merits. These two orders are impugned in these
appeals.
7. As mentioned supra, the entire exercise by the fifth
respondent to get the disputed property demarcated and to
secure possession thereof was based on the exparte decree dated
06.06.1994 passed in Title Suit No. 32/1993. Though
Miscellaneous Case No. 6/1999 had been filed by the appellant
for setting aside the exparte decree and was pending before the
District Court, the fifth respondent suppressed the said fact and
got the property in Demarcation Case No. 49/1997 demarcated,
and thereafter in spite of the exparte decree being set aside,
obtained possession of the property in question by virtue of the
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orders of the High Court in CWJC No. 3221/2003 and
Miscellaneous Jurisdiction Case No. 5323/2011. Though
Miscellaneous Case No. 6/1999 for setting aside the exparte
decree was allowed on 21.05.2003 and the exparte decree dated
06.06.1994 was set aside, the proceedings on the basis of the
order passed in the demarcation case continued before the
learned single Judge and the contempt Court, with a clear
suppression of material facts by the fifth respondent. Therefore,
the orders passed by the concerned officer in Demarcation Case
No. 49/1997, the orders passed by the High Court of Judicature
at Patna in CWJC No. 3221/2003, (including the order dated
27.02.2013 passed in Civil Review No. 21/2001 in CWJC No.
3221/2003), the order dated 16.12.2015 passed in Miscellaneous
Jurisdiction Case No. 5323/2011 and the order dated
29.03.2016 passed in CWJC No. 1806/2016, are liable to be set
aside. Consequently, the impugned orders dated 06.06.2016 and
20.11.2017 are also set aside.
8. It is evident that the possession of the property in question
needs to be restored in favour of the appellant, inasmuch as he
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was dispossessed based on the exparte decree dated 06.06.1994
which ultimately came to be set aside, and as the underlying suit
(viz. Title Suit No. 01/2003) itself came to be dismissed vide order
dated 29.08.2006, as mentioned supra.
9. The appeals are allowed with the above observations. It is
open to the appellant to get back possession of the property in
question in accordance with law in terms of this judgment.
..........................................J.
(N.V. Ramana)
............................................J.
(Mohan M. Shantanagoudar)
New Delhi;
April 15, 2019
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