IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.149 of 2007 RAJA RAM PRASAD GUPTA, Son of late Jangi Sah, resident of Village- Chakiya Bazar, P.O. Bara Chakiya, P.S. Chakiya, District- East Champaran......................................Defendant/Appellant/Appellant. Versus 1. Umesh Kumar Soni, son of late Mathura Prasad Soni. 2. Dilip Kumar Tulshyan, Son of Sawarmal Tulshyan. 3. Bishwambhar Tulshyan, son of Nagarmal Tulshyan. 4. Bishwanath Prasad, Son of late Bujhawan Sah. All residents of Village/ Maharajganj Bazar, Chakiya, P.S. Chakiya, P.O. Bara Chakia, District-East Champaran. ---------------Plaintiffs/Respndent-Ist Party. 5. Sharda Devi wife of Laxman Choudhur, resident of Village-Kolia Belwa, Tola Pokhariya, P.S. Kalyanpur, District- East Champaran. ---------------Defendant/Respndent-IInd Party.....Respondents. ------------ For the Appellant : M/s. Uma Kant Shukla and Rajesh Ranjan, No. 1, Advocates. ----------- 3. 28.10.2009. Heard learned counsel for the appellant. 2. This second appeal has been filed by the sole defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 01 of 2002, which was filed by the plaintiffs-respondent-Ist party for declaration that the plaintiffs and the public in general had got customary right over the suit property, including the Rasta and the Well detailed in scheduled 1 of the plaint and also for restraining the defendants from disturbing the said right and changing the nature of the property and also for setting aside the sale deeds dated 11.10.2001 and 11.07.2002 executed by defendant no.1 in favour of defendant no.3 with respect to the suit properties and also for other ancillary reliefs. 2 4. The said suit was contested by the defendant-appellant- appellant and after considering the pleadings and evidence of the parties, the learned Munsif, Sadar, Motihari, decreed the suit vide its judgment and decree dated 24.01.2006 in part only with respect to the Well its 3 feet wide platform and the 6 feet wide Rasta leading to the Well from the P.W.D. Road , declaring the customary right of the plaintiff and the public in general over the same. 5. The aforesaid judgment and decree of the trial court was challenged by the defendant-appellant in Title Appeal No. 03 of 2006 and after considering the evidence and pleadings of the parties, the learned District Judge, East Champaran, dismissed the said appeal vide its judgment and decree dated 12.06.2007 and affirmed the decision of the trial court. Against the aforesaid judgment and decree of the learned courts below this Second Appeal has been filed by defendant no.3. 6. Learned counsel for the appellant vehemently challenges the impugned judgments and decree of the learned courts below on the ground that they had not appreciated and considered the question of res- judicata and limitation which was clearly attributable to the facts and circumstances of the instant case as there was an earlier case between the same parties or their predecessor in interest. 7. In this regard it has become quite apparent from the arguments as well as the materials on record including the judgments and decree of the learned courts below that earlier Title Suit No. 159 of 1975 was filed by the general public of the area under Order I Rule 8 of C.P.C. for declaring their customary right over 17 dhoors of land alongwith the Rasta and the Well, but the said suit was dismissed with cost by the trial 3 court. However, against the said judgment and decree of the Title Suit, the plaintiffs thereof filed Title Appeal No. 28 of 1978 which was allowed by the learned court of appeal below holding that the plaintiffs and the public in general had customary right over 17 dhoors of land including the Rasta and the Well which were found in the western part of plot no. 1609/145. Against the aforesaid judgment and decree of the learned lower appellate court, the defendant of that suit, filed Second Appeal No. 720 of 1979 which was disposed of by this High Court on 28.09.1981 with the consent of the parties directing that the customary right of the public will continue only with respect to the Well, its 3feet wide platform alongwith 6 feet wide Rasta from Kesharia Road to the well. 8. It is also clear from the facts and circumstances of the case that the defendant of the earlier suit, namely, Chiranjilal Lohiya subsequently sold the said land including the said Rasta and Well to defendant no.1 vide sale deed dated 11.10.2001 and the plaintiffs claimed that defendant no.1 thereafter tried to change the nature of the said property and also wanted to demolish them to make construction of his house. In the same circumstances, the plaintiffs, who are members of the general public were constrained to file fresh suit bearing Title Suit No. 01 of 2002 for several reliefs including the relief challenging sale deed dated 11.10.2001. It further transpires that during pendency of the said Title Suit, defendant no.1 had sold the said property to the defendant no.3 vide sale deed dated 11.7.2002 and a relief against that deed was also added to the plaint and since defendant no.3 also tried to change the nature of the suit property a prayer for injunction was also made as the customary right of the general public was in danger and needed protection from the court. 4 9. It is thus quite apparent that due to the flimsy sale deed and illegal activities of the said Chiranji Lal and the present defendants, the plaintiffs of the instant suit were constrained to file a fresh suit for the relevant reliefs on the basis of the earlier judgments and decree of the courts below as well as of the Hon’ble High Court. Hence there was neither any question of the res-judicata nor there was any question of any bar of law of limitation specially when the sale deeds of defendant no.1 and defendant no.3 are of the year 2001 and 2002 and only thereafter they were trying to demolish the suit properties. Hence the right of the people declared by the earlier decision required protection from the court. 10. So far the other question raised on behalf of the appellant that the judgment and decree of the earlier suit was never executed is concerned, it is quite apparent that the judgment of the High Court in Second Appeal No. 07 of 1979 was as per the consent of the parties and it is apparent from the pleadings and evidence that the said undertaking/consent was through out followed and there was no violation of the said consent. Hence neither there was any occasion for execution of the earlier judgments nor there was any question of any delay in filing of the present suit which was filed only because the said decisions were violated by one of the parties to the earlier suit, namely, Chiranji Lal who executed the impugned sale deed dated 11.10.2001 in favour of defendant no.1. 11. Considering the entire facts and circumstances of the case, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor any substantial question of law is involved in the instant second appeal which is, accordingly, dismissed at 5 this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. U.K. (S.N.Hussain, J)