IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14604 of 2004 KESHWAR PRASAD YADAV S/O LATE BHADAI RAI, NIMOIYA TOLA, DHUMNAGAR, GHORASAHAN, E.CHAMPARAN. VERSUS 1. THE STATE OF BIHAR THROUGH MD ABDUL BAQUI, SUB JUDGE, V, MOTIHARI 2. NARSINGH RAI 3. JHALIA DEVI 4. LAXMAN RAI 5. SATAHU RAI 6. GAURI DEVI ALL RESIDENT OF NIMUIYA, GHORASAHAN 7. CHANDAR RAI 8. GAGANDEO RAI 9. SATAHA RAI ALL RESIDENT OF KATKUIYA, CHIRAIYA 10. LANGATU RAI 11. JARBAN RAI 12. SARYUG RAI 13. SADHU RAI 14. MUKHLAL RAI 15. RADHA RAI ALL RESIDENT OF NIMUIYA 16. RAMANAND RAI 17. PRE RAI 18. DEOCHANDRA RAI 19. JAMUNARAI ALL RESIDENT OF SAPAHA, BHELWA, GHORASHAHAN 20. AMAR LAL 21. VEKHRAJ RAI 22. DIPA RAI 23. KAPILDEO RAI 24. SIA RAM RAI 25. RAMVINOD TIWARI 26. MANEJAR RAI 27. JAGDEO RAI 28. RAJA RAI 29. GANGA RAM RAI 30. BAIJNATH RAI VILLAGE EKDARI, CHHAURA DANO. 31. MANTORBA DEVI, VILLAGE SAMANPUR, GHORASAHAN. ----------- 14 21.12.2009. Heard learned counsel for the parties. The petitioner has filed the instant application for declaring the decree and judgment, passed by the learned Sub-judge, East Champaran, Motihari a nullity. The petitioner along with his minor sons filed title suit no. 95/184 of 1991/97 in the court of sub judge, East Champaran, Motihari for partition to the extent of one third share and also for - 2 - declaring a deed of gift dated 10.9.1985 executed in favour of Narsingh Rai (defendant no.2) by Mostt. Mantorba (Defendant no. 31) as illegal and inoperative. The petitioner further prayed in the title suit for declaration of his title and confirmation of possession over the schedule 3 properties of the plaint. Learned counsel for petitioner states that during pendency of the suit defendant no. 4 Satahu Rai expired on 16.4.1995. The plaintiffs filed substitution petition on 21.4.1995 intimating the court about the death and for substitution of legal heirs. Though the trial court ordered expunging the name of defendant no.4, the same was not corrected. In the meantime, defendant no.14 Mukhlal Rai expired on 11.4.1996. The plaintiff/petitioner filed a petition on 22.4.1996 for substitution of legal heirs with a reminder petition on 10.6.1996. Even then, no order for substitution was passed nor name of deceased defendant was deleted. Defendant no.12 Saryug Rai also expired on 4.10.1997, for which petitioner field a substitution petition on 11.11.1997 but no order was passed on it. As such, name of defendant no.11 also continued in the category of defendants in the suit. Thereafter defendant no.7 Gagandeo Rai died. This time also, no order was passed on substitution petition of plaintiffs. The trial court pronounced judgment on 17.2.1998. However defendant numbers 4,7,11 & 13 who had died continued on the record in the category of defendants in decree. The petitioner preferred an appeal before the District judge, Motihari which directed the trial court to make correction in the decree and correction in the - 3 - memo of appeal. The appellant/petitioner filed a petition before the trial court for deleting the name of dead defendants and substituting their heirs. The first appellate court expunged the name of dead defendants on 2.1.1999. The memo of appeal bearing title appeal no. 22 of 1998 pending before the Addl District judge, Motihari was amended. The petitioner submits that the first appellate court erred in not substituting names of heirs of deceased defendants. The Title appeal was ultimately dismissed. The petitioner preferred Second appeal No. 319 of 2001, raising the grounds that the decree passed by trial court was a nullity in the eye of law, as it was passed against dead persons. The S.A. No. 319 of 2001 too got dismissed for default for non appearance of the appellants’ counsel. A petition for restoration was also dismissed on 22.11.2002. Petitioner/plaintiff thereafter moved the Hon'ble Supreme court in SLP which also was dismissed on the ground of delay on 6.5.2004. The petitioner submits that he could not be heard on merit by Superior courts. Consequently, illegality in the decree continued and remained on record. The petitioner now has filed this writ petition for setting aside judgment and decree passed by the trial court in Title suit no. 95/81/87. The petitioner states that under Article 226 of Constitution, this Court has very wide powers and can undo any illegality including setting aside judgment/degree passed in Title suit. Leaned counsel for the petitioner in this respect referred to the decisions reported in case of Kshitish Chandra Bose versus - 4 - Commissioner of Ranchi, reported in AIR 1981 Supreme Court 707 as well as Shri Anadi Mukta Sadguru Shree Muktajee vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others vs. V.R. Rudani and others, reported in AIR 1989 Supreme Court 1607. In case of Kshitish Chandra Bose (supra), Apex court noticed that the High court in Second Appeal though not having jurisdiction illegally reversed the concurrent finding of fact and as such remanded the same observing that all the proceedings taken thereafter as a result of the illegal order of remand would not sustain. In case of Shri Anadi Mukta Sadguru (Supra), the Apex court held that the power under Article 226 of the Constitutionof India is very wide and is not confined to statutory authorities and instrumentalities of State and it can be issued to any other person or authority performing public duty. It further held that if the party has no other equally expedient remedy, mandamus cannot be denied. Decisions cited by the petitioner would be of no help to him. In these case, the courts had passed order in appeals provided under Statutory provisions. In case of Shri Anadi Mukta Sadguru, the Apex court observed that the power of the High court in issuance of writ is not confined to the statutory body rather can be issued to any other person or authority performing public duty, which need not be imposed by statute. The aforesaid decision would not be applicable in the instant case, as facts and issues are different. None of the cases are on the point that the judgment passed in title suit which has not been set aside in Title appeal, - 5 - Second appeal or in Appeal in the Apex court, could be set aside by the High court in exercise of the writ jurisdictions. The petitioners have already availed remedy of appeals under the law up to Hon’ble Supreme Court and has lost. This court in exercise of power under the writ jurisdiction does not consider it appropriate to set aside the judgment and decree of the trial court. As a result, the writ petition is dismissed. The dismissal of writ would not come in way of petitioners for availing any other remedy under the law. Shashi. (Samarendra Pratap Singh,J).