APPEAL FROM APPELLATE DECREE NO.256 of 2003 *** Against the judgment and decree dated 17th of July, 2002 passed by Sri Arun Kumar Verma, Ist Additional District Judge, Purnea in Title Appeal No. 78 of 1997 (17 of 2001) reversing the judgment and decree dated 27th of June, 1997 passed by Additional Subordinate Judge-V, Purnea in Title Suit No.318 of 1996. *** The State of Bihar & Another ---- Appellants. V e r s u s S.R. Saidur Rahman ---- Respondent. For the Appellants : Mr.Abbas Haider, Advocate. For the respondent : Mr. D.K. Sinha, Sr. Advocate. M/S Anil Kumar Singh No.1 & Biresh Kumar Sinha, Advocates. PRESENT *** HON’BLE MR. JUSTICE S. N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by defendants-respondents-appellants (The State of Bihar and Collector, Purnea) against the judgment and decree of reversal passed by the learned court of appeal below. 2. The matter arises out of Title Suit No. 318 of 1996 which was filed by the sole plaintiff-appellant-respondent for declaration of his title over the suit land described in Schedule A of the plaint, namely 5.47 acres of plot nos.793 and 794 appertaining to C.S. Khata No. 120 and 5.28 acres of plot nos.782, 783, 784,788, 791, 792, 795, 796 and 775 appertaining to C.S. Khata No.287/498, all of Mauza Guwasi under police station K. Nagar within the district of Purnea totally measuring 10.75 acres. 3. The claim of the plaintiff was that plot no.793 and 794 was his ancestral land recorded in the name of Sk. Rajab Ali, grandfather of the plaintiff, whereas the remaining plots were acquired by virtue of settlement by ex-intermediary for agricultural purposes, whereafter rent was paid to the Darbhanga Raj and receipts were granted in his favour and after his death, the father of the plaintiff came in possession of the suit premises. It is also claimed that the said lands were wrongly 2 recorded in the name of the State of Bihar, whereafter Title Suit No. 6412 of 1964 was filed by the plaintiff but the same was dismissed ex-parte on 04.02.1977 due to absence of notice against the defendant under the provision of section 80 of Code of Civil Procedure. The plaintiff had also claimed that he remained in possession over the suit land throughout but when on 24.04.1996 the Circle Officer, K. Nagar, Purnea, threatened the plaintiff to settle the suit land with landless persons, the plaintiff sent a notice to the defendant under the provision of section 80 of the Code and two months after service of the said notice the instant Title Suit No. 318 of 1996 was filed by him. 4. The defendants-respondents-appellants contested the suit claiming that it was barred by provision of Specific Relief Act as well as the principles of res- judicata and insufficiency in the value of the suit given by the plaintiff and the non-payment of ad-valorem court fees. Although it was admitted that grandfather of the plaintiff was recorded in the Cadestral Survey but it was claimed by the defendants that he never cultivated the suit lands and it always remained Parti land and vested in the State of Bihar under the Bihar Land Reforms Act as Gairmazrua lands which were never in the possession of the plaintiff. It was also claimed that notice under section 80 of the Code was not properly served and most of the suit lands had already been settled with landless persons. Hence, it was claimed that the plaintiff was entitled to none of the reliefs claimed and the suit was fit to be dismissed with cost. 5. On the pleadings of the parties, the learned trial court framed the following issues: ISSUES (i) Has the plaintiff got any cause of action for the suit? (ii) Is the suit as framed maintainable? (iii) Is the suit hit by section 34 of Specific Relief Act? (iv) Is the suit barred by principles of Res-judicata? (v) Is the court fee paid sufficient? (vi) Is the notice u/s 80 C.P.C. properly served upon the State of Bihar? 3 (vii) Has the plaintiff got title and possession over the suit land? (viii) To what relief, if any, the plaintiff is entitled? 6. On the aforesaid issues evidence were led by the parties who were also heard, whereafter the learned trial court decided the suit holding that the issue of the effect of section 34 of the Specific Relief Act as well as the issue of insufficiency and valuation of the court fees were not pressed by either of the parties. So far the question of notice under section 80 of the Code of Civil Procedure is concerned, it was also found that the said notice was properly served upon the defendants. However, the trial court held that the suit was barred under the principles of res-judicata due to dismissal of the earlier Title Suit No. 6412 of 1964 and as such the plaintiff was not entitled to declaration of his title over the suit land. On the basis of above findings, it was held that the suit as framed was not maintainable and the plaintiff had no cause of action for the suit and he was not entitled to any of the reliefs claimed in the suit and accordingly the said suit was dismissed on contest by the learned Subordinate Judge-5, Purnea vide his judgment and decree dated 27.06.1997. 7. Against the aforesaid judgment and decree of trial court, the plaintiff filed Title Appeal No. 78 of 1997(17 of 2001) which was also contested by the defendants and after considering the pleadings of the parties, the following points were framed by the lower appellate court for consideration in the said title appeal. (i) Is the appeal as framed and filed maintainable? (ii) Whether the plaintiff-appellant has got any cause of action for the appeal? (iii) Whether the present appeal is barred by res- judicata? (iv) Whether the notice u/s 80 C.P.C. is properly served upon the State of Bihar? (v) Has the plaintiff-appellant got right, interest and possession over the suit land or the State of Bihar got right, title and interest over the same? (vi) Whether judgment and decree passed by the learned court below in T.S. No. 318/96 is valid or fit to be set aside? (vii) To any other relief or reliefs, the plaintiff-appellant is entitled? 4 8. After considering the matter in detail the learned court of appeal below allowed the said title appeal, set aside the judgment and decree of the trial court and decreed the suit and claim of the plaintiff by his judgment and decree dated 17.07.2002 after arriving at the specific finding that the plaintiff was the original owner of the suit land having right and title over the same and had throughout been in possession thereof whereas the defendant had no manner of concern with the suit land since the time of plaintiff’s grandfather, whose possession was never controverted by anyone. It was also held that the instant suit (Title Suit No.318 of 1996) was never barred by the principle of res-judicata as the earlier suit (Title Suit No. 6412 of 1964) was dismissed on technical ground of non-service of notice under section 80 of the Code of Civil Procedure on the defendant- State of Bihar. It was also found that notice of the instant suit (Title Suit No. 318 of 1996) was duly served upon the defendant State of Bihar under the provision of section 80 of the Code of Civil Procedure. It was further held that on the basis of the claim of the defendants, there was a clear threat to the title and possession of the plaintiff by the defendant State and its authorities and hence, the plaintiff had got valid cause of action for the instant suit which as framed was maintainable and the plaintiff was entitled to relief claimed and accordingly the judgment and decree of the learned trial court was fit to be set aside. 9. The above mentioned judgment and decree of the learned court of appeal below has been challenged by the defendants in the instant second appeal, which was filed on 16.12. 2003 and vide order dated 10.01.2008 the delay in the filing of the second appeal was condoned and the appeal was admitted for being heard on the following substantial questions of law: (i) Whether the plaintiff’s suit was barred by the principle of res-judicata as on previous occasion the suit filed by the plaintiff with respect to the same land was dismissed? 5 (ii) Other substantial question of law, if any, will be formulated at the time of final hearing of this appeal? 10. So far the first question with regard to the bar of res-judicata is concerned, the specific claim of defendants-appellants is that the earlier suit bearing Title suit No. 6412 of 1964 was between the same parties, for the same subject matter and for the same relief which are there in the present suit(Title Suit No. 318 of 1966) and hence, the earlier suit filed by the plaintiff-respondent having been dismissed the present suit filed by him is barred under the provision of section 11 of the Code of Civil Procedure. Admittedly in the said earlier suit no notice under the provision of section 80 of the Code of Civil Procedure was served upon the defendants who were State of Bihar and its authorities and hence it was dismissed on 28. 04.1968 as was apparent from the suit register itself. The learned court of appeal below had rightly relied upon a decision of the Hon’ble Apex Court in case of Gangappa Gurupadappa Gugwad Vs. Rachawwa and others , reported in A.I.R. 1971 SC 442 in which it was held that if notice under section 80 of the Code is not served in such a suit it would be the duty of court to reject the plaint recording an order to that effect and should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh suit in respect of the same cause of action. The learned court of appeal below also relied upon other decisions of this court in case of Chetal Sao and another Vs. State of Bihar and others, reported in 1986 B.L.J. 170 and also in case of Sri Rama Prasad Singh and others Vs. The State of Bihar and others reported in 1990 P.L.J.R. 165. 11. It is thus clear from the facts and circumstances of the case as well as from the materials on record that although the parties, the subject matter and the relief sought were same in both the suits but the earlier suit was not decided on merits rather it was dismissed merely on a technical ground of non-service of any 6 notice under the provision of section 80 of the Code. In the said circumstances, the learned court of appeal below after considering the pleadings of the parties and the evidence led by them rightly decided that the subsequent suit was not barred under the provision of section 11 of the Code. Accordingly, this court does not find any merit in the question of res-judicata raised by the appellants in the instant second appeal. 12. Apart from that it has been fully proved by the plaintiff-respondent that after the dismissal of the earlier suit due to non-filing of any notice under section 80 of the Code of Civil Procedure the authorities of the State of Bihar started threatening him and hence, the subsequent suit was filed by the plaintiff- respondent after sending notice to the defendant in accordance with law under section 80 of the Code. This fact has been duly proved by the plaintiff-respondent and both the learned courts below have arrived at concurrent finding with respect thereto. 13. It is also an admitted fact that the grandfather of the plaintiff- respondent was recorded in cadastral survey khatiyan as the cultivating raiyat whereafter Zamindari receipts were issued by the ex-intermediary in his favour and after vesting of the Zamindari into the State of Bihar under the Bihar Land Reforms Act, government receipts were issued in the name of the plaintiff which facts were fully proved by the plaintiff-respondent. The said records and receipts along with other materials fully proved right, title and possession of the plaintiff- respondent over the suit land. 14. On the other hand, the defendants-appellants miserably failed to prove their claim that the admitted raiyat namely grandfather of the plaintiff ever surrendered the said suit land to the ex-intermediary or was ever ousted by them. Furthermore, although the defendants-appellants, who are none else than the State and its authorities, were in possession of the Zamindari returns submitted by the ex-intermediaries but they failed to produce them before the court to disprove the 7 entries in the khatiyan and to prove that the suit land had ever vested in the State of Bihar. Hence it is apparent that the defendants-appellants never had any right, title or possession over the suit land. 15. In the aforesaid circumstances no other substantial question of law is made out in the instant second appeal. Accordingly, this court finds no illegality in the impugned judgment and decree of the learned court of appeal below and hence the instant second appeal is accordingly dismissed on contest. However, there will be no order as to costs. (S.N. Hussain, J.) Patna High Court, Dated the 8th August, 2008 AFR/harish