Jharkhand High Court
Nagendra Nath Gour vs Smt. Shanti Dubey on 29 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Appellate Jurisdiction]
S.A. No. 42 of 2019
Nagendra Nath Gour .... .. ... Appellant
Versus
1.Smt. Shanti Dubey
2.Sri Madan Mohan Dubey
3.Sri Amit Kumar Dwivedi
4.Smt. Shkuntala Dubey
5.Smt. Manorma Pandey
6.Smt. Neelam Kumari
7.Smt. Manorma Devi .. ... ... Respondents
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant : Mr. Rahul Kumar Gupta, Advocate
For the Respondents :
..........
07/ 29.07.2021. Heard, learned counsel for the appellant, Mr. Rahul Kumar Gupta.
The instant Second Appeal has been preferred by the defendant/appellant/
appellant against the concurrent findings passed by the two courts below vide
judgment dated 22.07.2015 (decree signed on 28.07.2015) passed by learned Civil
Judge (Sr Division)-II, Jamshedpur in Title Suit No.73/1996, which was affirmed by
the learned lower appellate court vide judgment dated 04.10.2018 (decree signed on
12.10.2018) passed by learned District Judge-IX, Jamshedpur, in Civil Appeal No.41
of 2015. The suit was for permanent injunction, restraining the defendant from
interfering with right, title, interest and possession of the plaintiffs with respect to
suit property mentioned in Schedule-A i.e. Raiyati Agricultural (Dhani) land
recorded Khata No.177, Plot no.1353, under Thana No.1146, area measuring 2.03
acres, situated at Mouza Bhelalipahari, P.S. M.G.M. Mango, District. Singhbhum
East, which is bounded as follows:-
North: Nagendra Gour Plot No.1353 and Jahar Asthan Plot No.1351
South: Nagandra Gour Plot No.1372
East: Plot No.1380 and Plot No.1382
West: Mota Arh (portion) of plot no.1354 and Nagandra Nath Gour
Plot No.1349
As such, the same has been decreed by the courts below in favour of
the plaintiffs without going into the issue with regard to possession, which was the
essential ingredient for such suit as the plaintiff has not prayed for declaration of
right, title, interest over the suit land, for recovery of possession or for confirmation
of the possession, as such, the suit is bad, in view of the judgment passed by the
Apex Court in the case Thimmaiah vs. Shabira and Others, reported in (2008) 4
SCC 182 as well as Ramji Rai & Another Vs. Jagdish Mallah (Dead) Through
LRS. & Another, reported in 2007 (14) SCC 202 .
Under the aforesaid circumstance, the Second Appeal is admitted on the
following substantial questions of law :-
(i)Whether the impugned judgment and decree passed in favour of the
plaintiffs is sustainable in view of the fact that admittedly the defendant was
in possession of the property, no finding has been given with regard to the
defendant's possession rather everything has been decided on the basis of
title of the parties though the plaintiffs have never prayed for declaration of
right, title, interest and recovery of possession or for confirmation of the
possession, as such, admittedly the defendant, who was in possession cannot
be ousted in a summary proceeding with regard to permanent injunction in
favour of the plaintiffs, who were admittedly not in a possession of the land?
However, the plaintiffs/respondents/respondents are at liberty to file a suit for
declaration of right, title, interest and recovery of possession or confirmation of
possession before the appropriate forum and the pendency of the second appeal will
not come in the way to adjudicate the issue.
Call for the Lower Court Records.
Let notice be issued to all the respondents i.e. respondent no.1- Smt. Shanti
Dubey, W/o Late Bharat Dubey, respondent no.2- Sri Madan Mohan Dubey,
respondent no.3- Sri Amit Kumar Dwivedi, respondent nos.2 and 3 both sons of
Late Bharat Dubey, All R/o Madhur Mistan, Old Sonari Bastee, P.O. & P.S. Sonari,
Town Jamshedpur, District Singhbhum East (Jharkhand), respondent no.4- Smt.
Shakuntala Dubey, D/o Late Bharat Dubey, W/o Sri R. L. Dubey, R/o Aashtha
Regency, near Piska More, P.O. & P.S. Sukhdev Nagar, Ratu Road, Ranchi, District-
Ranchi (Jharkhand), respondent no.5- Smt. Manorma Pandey, D/o Late Bharat
Dubey, W/o Ram Parvesh Pandey, R/o Old Purulia Road, Mango, P.O. & P.S.
Mango, Town Jamshedpur (Jharkhand), respondent no.6- Smt. Neelam Kumari, D/o
Late Bharat Dubey, W/o Late Kapildeo Pandey, R/o Ramnagar Sonari, P.O. & P.S.
Sonari, Town Jamshdepur, District Singhbhum East (Jharkhand) and respondent
no.7- Smt. Manorma Devi, W/o Shri Madan Mohan Dueby, R/o Mango Old Cinema
Road, P.O. & P.S. Mango Town Jamshedpur, District Singhbhum East (Jharkhand)
under both process i.e. under Registered Cover with A/D as well as under ordinary
process, for which requisites etc., must be filed within two weeks.
(Kailash Prasad Deo, J.)
Sandeep/R.S
