IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.410 of 2010 DEVENDRA RAI, Son of Birchha Rai, Resident of Village- Semraon, P.S. Hathua, District-Gopalganj. At present resident of Village-Kanhar Babu Tole, P.S.-G.B. Nagar, District-Siwan. ………Petitioner Versus 1. DEV SARAN SINGH. 2. Birendra Singh @ Birendra Rai. Both sons of late Ramjee Singh. 3. Mostt. Asharfi Kunwar, Wife of late Devendra Singh. 4. Sunil Kumar. 5. Sushil Kumar. 6. Sumit Kumar. O.P. Nos. 4 to 6 are sons of late Devendra Singh. …Opposite Parties 1st Set 7. Chandra Bhan Rai. 8. Brijbhan Rai. 9. Vijay Kumar Rai. 10. Shailendra Kumar Rai. O.P. Nos. 7 to 10 are sons of late Baban Rai. All are resident of Village-Kanhar Babu Tole, P.O. Babhanwara, P.S.-G.B. Nagar, District-Siwan. ….Opposite Parties 2nd Set ----------- For the Petitioner : Mr. Udit Narayan Singh, Adv. Mrs. Poonam Kumari, Adv. For Opposite Party : Mr. Binod Kumar Singh, Adv. Mr. Raghav Prasad, Adv. ----------- 7/ 15.04.2011 Heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of opposite party nos. 1 and 2. Despite service of notice, remaining opposite parties have chosen not to appear in this case. Hence, with the consent of the parties, matter was heard for final 2 disposal. 2. The petitioner has filed the present Civil Revision application questioning the validity and legality of the order dated 27.03.2010 passed in Misc. Case No. 48 of 2009 by learned Munsif 1st, Siwan, whereby the petition filed on behalf of the petitioner under Order 21 Rule 97 of the Code of Civil Procedure (in short C.P.C.) has been rejected, as not maintainable. 3. Learned counsel for the petitioner submits that admittedly, the suit property, involved in the present proceeding, was originally belonging to one Moti Rai, who had two sons, namely, Lagan Rai and Dhanraj Rai. The petitioner claims to be the grand-son (daughter’s son) of aforesaid Dhanraj Rai. Grand-sons of Lagan Rai, namely, Birendra Singh @ Birendra Rai and his brother had filed Title Suit No. 300 of 1992 for a decree of recovery of possession over the suit property i.e. two katha 10 dhurki of land of survey plot no. 148 appertaining to khata no. 70 situate at Village-Kanhar, P.S. Barharia, Now- G.B. Nagar, District Siwan. 3 4. It is further submitted that in Title Suit No. 300 of 1992, the petitioner herein was not impleaded as a party, though he has right, title and possession over the same. The aforesaid Title Suit No. 300 of 1992 was decreed on 16.08.1999 in favour of the plaintiffs of that suit. The petitioner claims to have come to know about the aforesaid judgment and decree for the first time when the Nazir went over the suit property on 16.01.2009 for giving delivery of possession to the decree-holders in compliance of order passed by learned Executing Court in Execution Case No. 9 of 2000/62 of 2001. The petitioner claims to have resisted the delivery of possession and thereafter he claims to have filed a petition on 03.11.2009 purportedly under Order 21 Rule 97 of the Code of Civil Procedure giving rise to Misc. Case No. 48 of 2009. The aforesaid petition has been brought on record as Annexure-4 to this petition. Learned counsel for the petitioner further submits that in view of resistance/ obstruction made by the petitioner, the learned court below was obliged to take the Misc. Case to its logical 4 conclusion by taking evidence from the parties and deciding the issues raised therein. But instead of complying the mandate of law, he has mechanically rejected the aforesaid petition by the impugned order, and held the same to be not maintainable. 5. Learned counsel appearing on behalf of opposite party nos. 1 and 2 has strongly opposed the prayer made on behalf of the petitioner. He submits that as a matter of fact, the petition filed by the petitioner in terms of Order 21 Rule 97 of the Code of Civil Procedure was not at all maintainable. He further submits that, in fact, the petitioner had not resisted the delivery of possession. Even no report to that effect is available on record. Therefore, in his submission, the impugned order is perfectly justified and is fit to be affirmed by this Court. 6. Both sides have placed their reliance on certain judgments of this Court as also the Apex Court in support of their respective cases. 7. After hearing the parties at length and on consideration of material available on records, this 5 Court is of the considered opinion that once a petition was filed under Order 21 Rule 97 of the Code of Civil Procedure by the petitioner, then that was required to be taken to its logical conclusion by following procedure prescribed under Order 21 Rule 101 to 105, which, in fact, is a self contained code. The learned court below, without following aforesaid procedure prescribed under the law, has mechanically rejected his petition, as not maintainable. Therefore, it has committed jurisdictional error and, as such, the impugned order cannot be sustained in the eye of law. 8. In the given facts of the case, this Court is also of the considered opinion that interest of justice would be subserved, if Misc. Case No. 48 of 2009 filed by the petitioner is taken to its logical conclusion by following procedure prescribed under the law, as indicated above. It is ordered accordingly. 9. For the reasons recorded above, the impugned order dated 27.03.2010 passed in Misc. Case No. 48 of 2009 is hereby set aside and matter 6 is remitted to learned Munsif 1st Siwan for deciding the same on merit afresh on the basis of materials to be produced by the parties. Learned court below is further directed to take up the Misc. Case No.48 of 2009 on priority basis and should make all endeavour to conclude the proceeding at an earliest, preferably within a period of three months from the date of receipt/production of a copy of this order. The parties have agreed to appear before learned court below on or before 6th May 2011. The court below shall not grant unnecessary adjournments sought by the parties and, if possible, the matter be taken up on day to day basis. All the issues regarding question of fact raised by the parties with respect to suit property shall be gone into and considered by the court below in accordance with law on its own merit. 10. With the aforesaid observations and directions, the present Civil Revision application stands disposed of. No costs. Anjani/ ( Birendra Prasad Verma, J.)