IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.248 of 2008 SITA RAM OJHA Versus RAM PRAVESH OJHA & ORS ----------- For the petitioner : M/s Sidheshwari Pd. Nr.Singh,Sr.Advocate. Ashok Kumar, Advocate. For the opposite parties: M/s Y.V.Giri, Senior Advocate, Ist Set: Raju Giri,Vikash Ratan Bharti & Ashish Giri, Advocates. 08. 02.05.2008 Heard learned counsel for the defendant Ist Party-judgment debtor-petitioner as well as learned counsel for plaintiffs-decree holders-Opposite Parties Ist Set. This civil revision has been filed by defendant Ist party- judgment debtor challenging order dated 17.01.2008 by which the learned Subordinate Judge, 2, Bhojpur ( Ara), disposed of his petition filed during final decree proceeding of Title suit No.35 of 1964 for rejection of the report of the pleader commissioner. This case has a chequered history as Title Suit No.35 of 1964 ( 03/1972) was filed by the plaintiffs for declaration of their 2/3rd share in the suit land measuring 20.08 acres and also for holding that order of the Assistant Custodian of Evacuee Property was illegal and not binding upon the plaintiffs. The said suit was dismissed by the learned trial court by judgment and decree dated 31.01.1973 against which the plaintiffs filed First Appeal No.174 of 1973 and after considering the arguments of the parties, this court allowed the aforesaid First Appeal by judgment and decree dated 09.04.1998 setting aside judgment and decree of the trial court and decreeing the - 2 - suit and claim of the plaintiffs with the following observations:- “ Accordingly the impugned judgment is set aside, the suit is decreed and it is held that the order dated 11.09.1956 passed by the Assistant Custodian, Arrah under the Administration of Evacuee Property Act is illegal, void and without jurisdiction and not binding upon the plaintiffs and the defendants 4th Set. The defendants Ist party did not acquire any right, title and possession over the suit land on the basis of Kebalas executed by the heirs of Rukmuddin and the custodian department. The plaintiffs are held to be entitled for 2/3rd share for 20.08 acres of suit land as also for recovery of possession over the same with mesne profits. It appears that in view of the aforesaid judgment and decree of this court final decree proceeding was initiated in Title Suit No.35 of 1964 (03/72) by the learned court below on the petition of the plaintiffs dated 19.06.1998. However, the said judgment and decree passed by this court in the First Appeal was challenged by defendant no.1-petitioner in LPA No.690 of 1998 which is pending. Furthermore MJC no.2320 of 1998 was filed by the heirs of respondent no.12 Bibi Jaibunissa asserting that she had died during the pendency of the First Appeal, but no step for substitution had been taken and the appeal had been allowed against a dead person without substituting or hearing her heirs. It may be mentioned here that this point was not taken by defendant Ist Party-petitioner in his Letters Patent Appeal. However, it transpires that a petition was filed by the heirs of respondent no.12 in the said Miscellaneous case for stay of further proceeding of execution case, but the said petition was dismissed by this court, whereafter the said M.J.C . case is also pending. It transpires from the facts and circumstances of the case that the final decree proceeding was initiated in the year 1998 and it - 3 - continued for a decade. Furthermore only on the ground of pendency of Letters Patent appeal or Miscellaneous Case, the proceeding of final decree cannot be stayed by the trial court unless an order of stay is passed by the higher court. In the said circumstances, the learned court below was quite justified in continuing with the final decree proceeding. It is also quite apparent from the record that although the plaintiffs-decree-holder- opposite party Ist Set claimed 2/3rd share in the suit property and the said share was decreed by this court in the first appeal, but the remaining 1/3rd share was held to be of defendants 4th party as per the judgment and decree passed by this court and hence the petitioner, who was defendant Ist Party, had no right, title and interest or share in the suit property as per the specific finding of this court in its judgment and decree passed in First Appeal No.174 of 1973. In the said circumstances, it transpires, defendant Ist Party judgment debtor-petitioner did not produce any evidence nor filed any Raibandi or Simt during the final decree proceeding. It also transpires that even the appointment of Pleader Commissioner for Taktabandi was not objected by him and only after the report of the Pleader Commissioner was submitted, the aforesaid frivolous petition has been filed by defendant Ist party-petitioner although he had no locus standi for the same as remaining 1/3rd share in the suit property had not gone to him rather it had gone to defendant 4th party. It may also be noted that after the matter with regard to objection of defendant Ist party-petitioner was heard and fixed for - 4 - orders, the learned Subordinate Judge, 2, Bhojpur received order of his transfer and hence he was justified in passing the impugned order before handing over charges, specially when the learned court below was fully aware that final decree proceeding is pending since about a decade. It also appears that as a matter of last resort to delay the proceeding a petition was filed on 17.01.2008 by the advocate of the defendant-petitioner stating therein that his client had no faith in the said court as justice could not be done, but the said petition did not contain the signature of the party. It may be stated that Pleader Commissioner had already submitted his report on 21.11.2007. From the facts and circumstances of the case as well as the materials on record including the impugned order it is quite apparent that the learned court below has considered the entire matter in detail and has passed the said order legally and properly committing no error of jurisdiction and hence this civil revision is without any merit and is accordingly dismissed. ( S.N.Hussain,J.) sunil