Patna High Court
Bipti Devi vs Jitendra Singh on 24 June, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.827 of 2023
======================================================
1. Bipti Devi Wife of Late Ganga Prasad Singh Resident of Village-Goshpur
P.S. Dalsingsarai, Dist. Samastipur.
2. Abhishek Raj Son of Late Uma Shankar Prasad Singh Resident of Village-
Goshpur P.S. Dalsingsarai, Dist. Samastipur.
3. Aniket Raj Son of Late Uma Shankar Prasad Singh Resident of Village-
Goshpur P.S. Dalsingsarai, Dist. Samastipur.
4. Kumari Madhu Wife of Late Uma Shankar Prasad Singh Resident of
Village-Goshpur P.S. Dalsingsarai, Dist. Samastipur.
... ... Petitioner/s
Versus
1. Jitendra Singh Son of Late Ram Lalit Singh Resident of Village Goshpur,
P.S.-Dalsingsarai, Dist.-Samastipur.
3. Krishnadeo Singh Son of Late Dhanraj Singh Resident of Village-Goshpur
P.S. Dalsingsarai, Dist. Samastipur.
4. Ashok Kumar Son of Krishnadeo Singh Resident of Village-Goshpur P.S.
Dalsingsarai, Dist. Samastipur.
5. Alok Kumar Son of Krishnadeo Singh Resident of Village-Goshpur P.S.
Dalsingsarai, Dist. Samastipur.
6. Arun Kumar Son of Krishnadeo Singh Resident of Village-Goshpur P.S.
Dalsingsarai, Dist. Samastipur.
7. Deo Kumari D/o Late Ganga Prasad Singh and Wife of Dhaniklal Singh R/o
Village-Taraspur, P.S.-Dalsingsarai, Dist.-Samstipur
8. Rubi Kumari D/o Late Ganga Prasad Singh and W/o Saket Bihari Resident
of Village-Simiri, P.S. Vidyapati Nagar, Dist. Samastipur.
9. Roji Kumari D/o Late ganga Prasad Singh and W/o Devendra Kumar R/o
Village Bachhauta, P.S. Morkahi, Dist. Khagriya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Vaidehi Raman Prasad Singh, Advocate
For the Respondent/s : Mr.Ranjan Kumar Dubey, Advocate
Mr. Kumar Gaurav, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 24-06-2025
The instant civil miscellaneous petition has been filed
for quashing the order dated 20.07.2023 passed by learned
Munsif, Dalsingsarai in Title Suit No. 34 of 2007 whereby and
whereunder the learned Munsif admitted the counter claim of
defendant nos. 3 to 6.
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
2/16
2. The facts of the case, briefly stated, are that the
petitioners are plaintiffs and the respondents are defendants
before the learned trial court and the plaintiffs/petitioners have
filed Title Suit No. 34 of 2007 in the Court of learned Junior
Division, Dalsingsarai, inter alia seeking declaration of their
title over Schedule 1A and Schedule 1B land of the plaint and
for recovery of possession by directing the defendants to
remove their respective walls and fencing from Schedule 1A
and Schedule 1B land and also for grant of perpetual injunction
restraining the defendants from laying any claim over the suit
land and from making any encroachment over any portion of the
suit land. The plaintiffs and the defendants are descendants of
common ancestors and there has been a registered partition of
joint family property on 06.06.1968 and C.S. Plot No. 2054 was
also the subject matter of partition and from this plot, father of
original plaintiff no. 1 was allotted 12 decimal in the middle of
the said plot. 25 decimal from North was allotted to the family
of Dhanraj Singh, ancestor of defendant 2nd party, 7 decimal,
extreme South was allotted to the share of Mishri Lal Singh
whose descendants are the defendant 1st party. The parties to the
partition came into their exclusive possession of allotted share
of their land. Subsequently, the dispute arose with regard to
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
3/16
ridges of the respective parties and Circle Officer, Dalsingsarai
got the land measured through Anchal Amin and demarcated the
land. Plaintiff/petitioner claim in September 2007, defendant 1 st
and 2nd parties in collusion with each other encroached upon 15
dhur and 10 dhur, respectively and fenced the said encroached
portion with bamboo. The defendants appeared and filed their
written statement and the defendant 2nd party(defendant nos. 3
to 6) admitted the partition dated 06.06.1968 but claimed that
there was exchange of some dhurs of land amongst the parties
by mutual consent and the parties constructed their residence,
dalan, bathan, etc. on their respective land and the rest of the
land was used for agricultural purpose. The defendant 2nd party
stated that they would have no objection is land is demarcated in
accordance with partition dated 06.06.1968. The defendant 2nd
party further claimed that the land of 25 decimal is not the land
under dispute and they filed a counter claim for measurement of
the land in Schedule 1 of the written statement, which contained
altogether 9 plots, measuring 68 1/2 decimals including 25
decimal of plot no. 2054 as per the partition dated 06.06.1968
and to get separate pattis carved out proportionately by the
survey knowing pleader commissioner and to give possession of
the same to the concerned parties. The learned trial court called
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
4/16
for a report on the counter claim of defendant 2 nd party
/defendants 3 to 6 from the sirestedar on 16.04.2008,
22.04.2008
, 29.04.2008, 13.05.2008 but the report was not
received. Thereafter, the issues were framed on 02.01.2009.The
plaintiff examined his witnesses and evidence of the plaintiff
was closed on 21.12.2018. Thereafter examination of the
witnesses of defendant no. 3 started and one of the witnesses
was examined and cross examined in part on 12.04.2019 and
03.05.2019, respectively. On 24.01.2020, a petition was filed on
behalf of defendant no. 3 to the effect that counter claim was
filed on 28.04.2008 and on 16.04.2008 the court has called for a
report from the sirestedar but the said report was not received
and a prayer to call a report in the light of the order passed on
16.04.2008 was made. Vide order dated 07.02.2020, the petition
dated 24.01.2020 was allowed and the sirestedar was directed to
give the report on the counter claim. After report of the
sirestedar, the defendant filed court fee on counter claim and the
case was fixed for hearing on the point of admission of the
counter claim. The learned Munsif vide order dated 20.07.2023
admitted the counter claim and the said order is under challenge
before this Court.
3. Learned counsel for the petitioners submitted that
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
the learned trial court has passed an erroneous order without
considering the fact that counter claim was sought to be brought
on record after much delay and the same is not in terms or order
VIII Rule 6 B of the Code of Civil Procedure (in short "the
Code"). The suit property is also different. In the plaint, the
property in dispute is 15 dhur of C.S. Plot No. 2054 (Schedule
1A land) and 10 dhurs of C.S. Plot No. 2054(Schedule 1B land)
which the plaintiffs claimed was the allotted share of the
ancestors of the plaintiffs and which were encroached upon by
defendant 1st and 2nd set. The plaintiffs sought relief of
declaration of their title over Schedule 1A and Schedule 1B land
of the plaint and recovery of the possession of the said land.
Learned counsel further submitted that, on the other hand, the
land in question is 25 decimal of C.S. Plot No. 2054 allotted to
the share of the ancestors of the defendant 2 nd party along with
eight other plots and total area being 68.5 decimal and the relief
sought for is for measurement of Schedule 1 land of written
statement containing 9 plots measuring 68.5 decimal as per
partition dated 06.06.1968 and to carve out separate patti
proportionately by a survey knowing pleader commissioner and
to give possession of the same to the concerned parties. The
learned counsel further submits that as soon as the suit property
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
changed, the counter claim does not remain maintainable and
the option for the defendant is to file a separate suit. Learned
counsel referred to a decision of the Hon'ble Supreme Court in
the case of Satyender & Ors. Vs. Saroj & Ors. reported in AIR
2007 SC 4732 wherein the Hon'ble Supreme Court held that a
counter claim can be set up only against the claim of the
plaintiffs and considering the fact of the case that there was no
claim of plaintiff regarding two plots of land, the defendants
were barred to raise any counter claim of these plots. Similarly,
in the present case the defendants/respondents have raised a
counter claim not only against the claim of the plaintiff but also
with regard to certain other portions of land. Learned counsel
further submitted that the Hon'ble Supreme Court further held
in the aforesaid case that the Legislature permits the institution
of a counter claim, in order to avoid multiplicity of the
litigation. But the counter claim must not exceed the pecuniary
jurisdiction of the court and such counter claim must be against
the claim of the plaintiff. Learned counsel further submitted that
the relief claimed by defendant 2nd party in counter claim
cannot be granted without impleading the parties to the partition
dated 06.06.1968. Learned counsel further submitted that once
the counter claim was not sought to be brought on record prior
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
to the settlement of issues, the same could not be allowed at
subsequent stage. Moreover in the present case, the evidence of
plaintiffs has been closed and the matter has been running at the
stage of evidence of the defendants. The defendant 2nd party did
not take any steps for admission of counter claim for about 12
years. There was no explanation for making a prayer for report
from sirestedar after so much delay.
The learned counsel next referred to the case of Rohit
Singh and Ors. vs. State of Bihar (Now State of Jharkhand) &
Ors. reported in AIR 2007 SC 10 wherein the Hon'ble Supreme
Court held that a counter claim, no doubt, could be filed even
after the written statement is filed, but that does not mean that a
counter claim can be raised after issues are framed and the
evidence is closed. The Hon'ble Supreme Court went on to
observe that the entertaining of so called counter claim of
defendant nos. 3 to 17 by the trial court, after framing of issues
of trial was clearly illegal and without jurisdiction. Learned
counsel further submitted that a counter claim has necessarily to
be directed against the plaintiff in the suit, though incidentally
or along with it, it may also claim relief against co-defendant in
the suit. In the instant case, the counter claim is based not only
against the plaintiffs but other parties who are not even parties
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
in the present case. In Rohit Singh (supra), the Hon'ble
Supreme Court further held that after the evidence was closed,
there was no occasion for impleading the intervenors. Thus
learned counsel submitted that in the given facts of the case, the
learned trial court has exercised its jurisdiction illegally in
admitting the counter claim as the same would result in
prolonging the trial of the suit which is already more than 16
years old. In support of his contention the learned counsel relied
on the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani
reported in AIR 2003 SC 2508 wherein the Hon'ble Supreme
Court held that if the consequence of permitting a counter claim
either by way of amendment or by way of subsequent pleading
would be prolonging of the trial, complicating the otherwise
smooth flow of proceedings or causing a delay in the progress
of the suit by forcing a retreat on the steps already taken by the
court, the court would be justified in exercising its discretion not
in favour of permitting a belated counter claim. Learned counsel
next submitted that the admission of counter claim of the
defendant 3rd party after 15 years of its filing and after closure
of evidence of the plaintiffs and after starting of the evidence of
defendants is unjustified and illegal and is fit to be set aside.
4. Learned counsel appearing on behalf of the
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
respondent nos. 3, 5 & 6 vehemently contended that there is no
infirmity in the order of the learned trial court and the same does
not need any interference by this Court. The learned counsel
further submitted that the counter claim was filed with the
written statement on 18.03.2008, but for some reason, counter
claim could not be admitted. The sirestedar report was called for
and it appears the said report was not furnished till 2020 and
when the report was furnished, the same was found to be
defective and another report was called for and the said report
was submitted on 16.09.2021. In the light of sirestedar report,
the defendants paid Rs.2,830/- as court fee. Learned counsel
further submitted that if the sirestedar report was not submitted
within reasonable time, the answering defendants/respondents
are not at fault and it is only due to the fault of the Court that no
orders could be passed on admission of counter claim though
the same has been pending since 2008. Learned counsel for the
respondents referred to the decision of Jag Mohan Chawla &
Anr. Vs. Dera Radha Swami, Satsang and Ors. reported in
AIR 1996 SC 2222 submitting that the counter claim need not
relate to or be connected with the original cause of action or
matter pleaded by the plaintiff. The learned counsel submitted
that in the aforesaid case, the learned Supreme Court held that a
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
defendant can claim any right by way of a counter claim in
respect of any cause of action that has accrued to him even
though it is independent of the cause of action averred by the
plaintiff and have the same cause of action adjudicated without
relegating the defendant to file a separate suit. The learned
counsel next referred to the decision of the learned Single Judge
of Jharkhand High Court in the case of Ganesh Tiwari and Anr.
Vs. Ramakant Tiwari and Ors. reported in (2007) 1 JLJR 472
(HC) wherein the learned Single Judge held that the defendant
can claim any right by way of counter claim in respect of any
cause of action even though independent of the cause of action
averred by the plaintiff and further held that merely because of
separate suit for declaration in respect of the property sought to
be included by way of counter claim in joint family property
would be maintainable, that cannot be a ground for rejection of
the counter claim made by the defendants for deciding the
question in the same suit.
5. Learned counsel appearing on behalf of the
respondent no. 8 submitted that this respondent also has a share
in the suit property and if the counter claim is allowed to remain
on record, she would be entitled to one share in the property
held by her father Ganga Prasad Singh who is since dead.
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
6. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
7. The issue before this Court is whether counter
claim could have been admitted by the learned trial court at a
much belated stage and when there has been objection to the
subject matter of the counter claim.
8. In Satyender (supra) the Hon'ble Supreme Court in
paragraph no. 16 held has under:-
"16......The Legislature permits the institution of
a counter claim, in order to avoid multiplicity of
litigation. But then it has certain limitations such
as that the counter claim cannot exceed the
pecuniary limits of the jurisdiction of the court,
and that such counter claim must be instituted
before the defendant has delivered his defence or
before the time limit for delivering his defence has
expired. More importantly, such a counter claim
must be against the plaintiff! Evidently, in the
present case the counter claim was not against
the plaintiffs. Moreover, as the plaintiffs had not
claimed any right over the property and the Killa
Nos. 6//8 and 23 are not even a part of the suit
property described in the plaint by the plaintiffs.
Despite the same, such a claim has been allowed
against the plaintiffs. In fact, we do not find on
record any reply submitted by the plaintiffs
against the counter claim. To be fair, such a
counter claim should have been excluded in terms
of Order VIII, Rule 6C of the CPC. Suffice it to
state here that the counter claim set up by the
defendants has been rightly rejected by the High
Court. "
9. From the facts of the case, it transpires the
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
plaintiffs/petitioners have filed the suit seeking declaration of
plaintiffs title over Schedule 1A and Schedule 1B land and also
grant of relief for recovery of possession in favour of the
plaintiffs and against the defendants directing the defendants to
remove their respective wall and fencing and deliver the vacant
possession of Schedule 1A and 1B land to the plaintiffs apart
from seeking relief of perpetual injunction.
10. Now Schedule 1A and 1B land have been
described as under:-
Schedule I :- Village-Goshpur under P.S.-Dalsingsarai, Dist.-
Samastipur
Schedule 1A land:-
Khata No. C.S.P. No. Area Boundary
189 2054(P) 15 dhur N- Plaintiff
undisputed
portion of land
S- Defendants
Ist party and is
other co-sharer
E- Defendants
2nd party
W-Road
Schedule I B land:-
Khata No. C.S.P. No. Area Boundary
189 2054(P) 10 dhur N-Defendants
2nd party
S- Plaintiff
undisputed
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
portion of land
E- Defendants
2nd party
W-Road
On the other hand, the defendants in their counter
claim have sought the relief that the land of Schedule 1 of the
counter claim be demarcated in accordance with partition deed
dated 06.06.1968 and after appointment of survey knowing
pleader commissioner, the patti of the concerned party be carved
out proportionately and the parties concerned be put into
possession of the respective shares. Now, Schedule 1 of the
counter claim reads as under:-
Mauza-Goshpur Inayat, Thana-Dalsingsarai, Thana No. 70,
Pargana-Saraisa, District-Samastipur
Khata No. Khesra No. Rakwa/Area
Acre-Dismal
102 2054 0-25
18 2029 0-11
189 2027 0-11
667 0-3
668 0-3
669 0-5 from North
154 742 0-5 from South
211 666 0-3 from South
126 662 0- 2 1/2
11. From bare perusal of the claims of the plaintiffs as
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
well as defendants it is apparent that as the plaintiffs have their
claim only against certain defendants who he claims, have
encroached upon the land which the plaintiffs got in partition
deed dated 06.06.1968, the defendants in their counter claim
want to bring all the land for which partition dated 06.06.1968
took place in dispute seeking appointment of survey knowing
pleader commissioner to carve out their separate patti in
accordance with the partition deed dated 06.06.1968. Evidently,
the counter claim of the defendants/respondents is not only
against the claim of the plaintiffs/petitioners but much beyond
that. Further, the claim is not only against the plaintiffs and the
defendants but might also be against the persons who were not
made parties as defendants by the plaintiffs.
12. Further, Order VIII Rule 6A of the Code reads as
under :-
" 6A. Counter-claim by defendant.
(1)A defendant in a suit may, in addition to
his right of pleading a set-off under rule 6,
set up, by way of counter-claim against the
claim of the plaintiff, any right or claim in
respect of a cause of action accruing to the
defendant against the plaintiff either before
or after the filing of the suit but before the
defendant has delivered his defence or before
the time limited for delivering his defence has
expired. whether such counter-claim is in the
nature of a claim for damages or not:
Provided that such counter-claim shall not
exceed the pecuniary limits of the jurisdiction
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
of the Court.
(2) Such counter-claim shall have the same
effect as a cross-suit so as to enable the
Court to pronounce a final judgment in the
same suit, both on the original claim and on
the counter-claim.
(3) The plaintiff shall be at liberty to file a
written statement in answer to the counter-
claim of the defendant within such period as
may be fixed by the Court.
(4) The counter-claim shall be treated as a
plaint and governed by the rules applicable
to plaints. "
Reading the statutory provision along with the
decision of the Hon'ble Supreme Court in the case of Satyender
(supra), it leaves no doubt that the defendants are entitled to file
counter claim only against the claim of the plaintiffs. If the suit
property has been completely changed and instead of asserting
their right and interest over the suit property and seeking relief
for the same, the defendant nos. 3 to 6 have made a claim for
demarcation of the land as mentioned in their counter claim and
also carving out of their separate patti by appointment of survey
knowing pleader commissioner. It is also pertinent to note here
that the plaintiffs claim that there has already been separation
between different branches and the co-sharers have already
come into possession of their shares and there is no case that
separate pattis are yet to be carved out. Therefore, the counter
claim of the defendants cannot be stated to be a counter claim
Patna High Court C.Misc. No.827 of 2023 dt.24-06-2025
stricto sensu in terms of Order VIII Rule 6A and as clarified in
the case of Satyender (supra). In the light of distinguishable
facts, the reliance placed by the learned counsel for the
respondents on the case of Jag Mohan Chawla (supra) is not of
much help.
13. Having regard to the discussion made
hereinabove, I am of the considered opinion that the learned
trial court committed an error of jurisdiction as it only
considered the ground of delay in admitting the counter claim
whereas it ought to have considered the merits of the counter
claim, a duty in which it has failed. Therefore, the impugned
order dated 20.07.2023 cannot be sustained and hence the same
is set aside.
14. Accordingly, the present petition stands allowed.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR AFR
CAV DATE 15.04.2025
Uploading Date 25.06.2025
Transmission Date N/A
