IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.286 of 2005 ----- 1. Ashok Kumar 2. Nirmal Kumar, Both sons of Late Bishwanath Prasad. 3. Most Savya Devi, wife of Late Bishwanath Prasad. 4. Smt. Beena Devi, wife of Pardeep Kumar, Daughter of Late Bishwanath Prasad, Resident of village-Birganj (Nepal) at present Mohalla-Janki Asthan, Ward no.6, P.O. & P.S. &District-Sitamarhi. --- Defendant 3rd Party-Respondents 3rd party- Appellants. Versus 1. Ramji Prasad, son of Late Mathura Sah, resident of Mohalla Lohapatti, Ward No. 9, P.O. & P.S. Sitamarhi, Sub-Division Sitamarhi West Sadar, District Sitamarhi. --- Plaintiff-Appellant- Respondent Ist Party. 2. Sitamarhi Municipality now known as Nagar Parishad Sitamarhi, through Commissioners at Sitamarhi, P.O. & P.S.Sitamarhi, Sub- Division & District -Sitamarhi … Defendant Ist Party-Respondent Ist Party- Respondent 2nd Party. 3. Smt. Geeta Devi, Commissioner Ward No.1. 4. Smt. Shanti Devi, Commissioner Ward No. 2. 5. Smt. Shahid, Commissioner Ward No. 3. 6. Smt. Sunita Devi, Commissioner Ward No.4. 7. Vijay Prasad Swarnkar, Commissioner Ward No.5. 8. Smt. Tara Devi, Commissioner Ward No.6. 9. Smt. Asha Devi, Commissioner Ward No. 7. 10. Sri Nirmal Kumar, Commissioner Ward No.8. 11. Sri Uma Shankar Prasad, Commissioner Ward No.9. 12. Sri Lakshman Prasad, Commissioner Ward No.10. 13. Sri Sanjay Kumar, Commissioner Ward No. 11. 14. Smt. Shakuntala Sharma, Commissioner Ward No.12. 15. Sri Chathi Lal Prasad, Commissioner Ward No. 13. 16. Om Prakash Jaiswal, Commissioner Ward No.14. 17. Sri Pramod Kumar Singh, Commissioner Ward No.15. 18. Sri Lal Babu Prasad, Commissioner Ward No. 16. 19. Smt. Saroj Varma ,Commissioner Ward No. 17. 20. Sri Gyan Prakash, Commissioner Ward No. 18. 21. Smt. Punam Devi, Commissioner Ward No.19. 22. Sri Shiv Kumar Bazle, Commissioner Ward No.20. 23. Sri Sohan Singh, Commissioner Ward No.21. 24. Sri Ram Anek Singh, Commissioner Ward No.22. All Commissioners of Sitamarhi Municipality. 25. Executive Officer, Sitamarhi Municipality now known as Nagar Parishad, P.O. ,P.S. and District Sitamarhi. Defendant 2nd Party – Respondent 2nd Party- Respondent 3rd Party. -------- For the appellants : Ms. Sushmita Mishra, Advocate For the respondents : None. ------- - 2 - 06. 21.01.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed on behalf of defendant no.29 series-respondents 3rd party-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.38 of 1988 filed by the sole plaintiff-appellant- respondent Ist set for declaration of his title, confirmation of possession and in the alternative recovery of possession of the suit premises, if found dispossessed during pendency of the suit, and for other ancillary reliefs. The said suit was dismissed on contest with cost by learned Munsif, Sadar, Sitamarhi, vide his judgment and decree dated 11.01.1994 on the ground that the plaintiff was unable to prove his title over the suit land. However, the claim of defendant no.29 (appellants in the instant second appeal) was also rejected by the learned trial court on the ground that after the earlier judgment of the Hon’ble High Court dated 23.08.1984 (Ext.-15/A) passed in the earlier Second Appeal, defendant no.29 should have brought a separate suit, but it was not done by him and mere being permitted to be impleaded as defendant no.29 and praying for dismissal of the plaintiff’s suit in the written statement, no right could be accrued to him without complying the provision contained in Order VIII Rule 6A of the Code of Civil Procedure. 4. Against the aforesaid judgment and decree of the learned trial court, the plaintiff filed Title Appeal No.05 of 1994 (30/2004) and in the said title appeal, defendant no.29 filed a cross - 3 - appeal challenging the aforesaid finding of the trial court. However, the learned Additional District Judge-cum- Fast Track Court No.1, Sitamarhi, vide his judgment and decree dated 20th July, 2005 allowed the title appeal of the plaintiff and rejected the claim of defendant no.29 on the ground on which the trial court had rejected his claim and furthermore, the cross-appeal of defendant no.29 was dismissed due to non-payment of court fee. Both the aforesaid judgments and decree of the learned courts below have been challenged by the said defendant no.29 in the instant second appeal. 5. After considering the facts and circumstances as well as the averments of the parties and the materials on record, including the judgments and decree of the learned courts below, it is quit apparent that defendant no. 29 did not file any title appeal against the finding of the trial court against him and filed a cross appeal in the title appeal filed by the plaintiff in the lower appellate court. The said cross-appeal having been dismissed due to non-payment of court fees, this court does not find any illegality in the judgment and decree of the lower appellate court in rejecting the counter appeal filed by defendant no.29 in the said title appeal. 6. However, in view of the claim of defendant no.29 series, the appellants in the instant second appeal, having been rejected by the learned trial court merely on technical ground that since he had not brought a separate suit as per the earlier judgment of this court, no relief can be granted in the instant title suit, the appellants of the instant second appeal will be at liberty to bring a - 4 - separate suit in accordance with the aforesaid judgment (Ext.15/A) of this court, if not barred by any law in the meantime and the said suit will be decided on its own merits in accordance with law. 7. With the aforesaid observations, this second appeal is dismissed. Sunil (S. N. Hussain, J.)