IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.131 of 2005 RAJ NARAYAN SINGH, SON OF LATE KAMLA SINGH, RESIDENT OF VILLAGE-MORIYA, P.P.MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, DISTRICT-SARAN……PLAINTIFF…….APPELLANT. Versus 1. OM PRAKASH SINGH. 2. BHANU PRAKSH SINGH. BOTH SONS OF LATE KAMLA SINGH. 3. DAMYANTI DEVI, WIDOW OF LATE JAI NARAYAN SINGH. 4. DHARMENDRA KUMAR SINGH, SON OF LATE JAI NARAYAN SINGH. 5. KIRAN DEVI. 6. BINA DEVI. 7. MINA DEVI. ALL DAUGHTERS OF LATE JAI NARAYAN SINGH. 8. CHANDESHWAR SINGH. 9. SRI PRAKASH SINGH. 10. JAI PRAKASH SINGH. ALL SONS OF LATE KAMLA SINGH. 11. GUNJAN KUMAR SINGH(MINOR), SON OF JAI PRAKSH SINGH THROUGH HIS FATHER AND GUARDIAN JAIN PRAKASH SINGH(DEFENDANT- RESPONDENT NO.10). ALL ARE RESIDENTS OF VILLAGE + P.O. MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, DISTRICT-SARAN. 12. JANKI DEVI, WIFE OF DINESH RAI, RESIDENT OF VILLAGE- MAIRWA(NECHUA-JALALPUR), P.O. + P.S. MAIRWA, DISTRICT-GOPALGANJ. 13. CHANDRAKANTA DEVI, WIFE OF SUDAMA RAI, RESIDENT OF VILLAGE-SUKRAULI, P.O. + P.S. NECHUA JALALPUR, DISTRICT-GOPALGANJ. ………..(DEFENDANT 1ST PARTY)….RESPONDENT 1ST PARTY. 14. MOSTT. LALMUNI DEVI, WIFE OF LATE BAIJNATH SINGH. 15. SHASHI BHUSHAN SINGH, SON OF LATE BAIJNATH SINGH. 16. CHANDRA BHUSHAN SINGH, SON OF LATE BAIJNATH SINGH. ALL ARE RESIDENTS OF VILLAGE + P.O. MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, PERGANA-GOA, DISTRICT-SARAN. ……..DEFENDANT 2ND PARTY…….RESPONDENT 2ND PARTY. 17. SMT. CHINTA DEVI, DAUGHTER OF SRI RAMAYAN SINGH AND WIFE OF BHANU PRAKASH SINGH, RESIDENT OF VILLAGE + P.O. MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, DISTRICT-SARAN. ………DEFENDANT 3RD PARTY……RESPONDENT 3RD PARTY. 18. SMT. KRISHNA DEVI, WIFE OF OM PRAKSH SINGH, RESIDENT OF VILLAGE + P.O. MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, PERGANA-GOA, DISTRICT-SARAN. - 2 - ………DEFENDANT 4TH PARTY……RESPONDENT 4TH PARTY. 19. SMT. SUSHILA DEVI, WIFE OF BHAGWAN RAI. 20. SRI ANIL KUMAR RAI, SON OF RAMAYODHYA RAI. BOTH RESIDENTS OF VILLAGE-CHAKRAMDASPUR, P.O. MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, PERGANA-GOA, DISTRICT-SARAN. 21. SRI RAMASHISH RAI, SON OF LATE BALDEO SINGH. 22. SMT. RAJMATI DEVI, WIFE OF LAL BABU SINGH. BOTH RESIDENTS OF VILLAGE + P.O MORIYA, OLD P.S. MASHRAKH, NEW P.S. PANAPUR, PERGANA-GOA, DISTRICT-SARAN. ………DEFENDANT 5TH PARTY……RESPONDENT 5TH PARTY. ----------- For the Appellant : Mr. Binod Kumar Singh, Advocate. For the Respondent No.2 : M/s. Suresh Prasad Singh No.1 and Vitesh Kumar Singh, Advocates. ------------ 12. 26.3.2009. Heard the learned counsel for the appellant as also the learned counsel for Respondent No.2. At the very initial stage a preliminary objection has been raised by the learned counsel for Respondent No.2 that this Misc. Appeal is not maintainable since the very suit out of which this Misc. Appeal has arisen was dismissed for non prosecution as far back as on 14.9.2006. In support of the submissions he has placed reliance on Annexure-B appended to the counter affidavit filed by him on 19.9.2008 after serving a copy thereof on the learned counsel for the appellant. The said order reveals that Partition Suit No.305 of 1995 stands dismissed for non prosecution as the parties have not filed hazri. Assailing the submissions advanced by the learned counsel for the Respondent No.2, the learned counsel for the appellant sought to submit that a restoration application for restoration of the aforesaid Title Suit has already been filed and orders are expected to come in April, 2009 and, therefore, this Court in the interest of justice should refrain from hearing this appeal under - 3 - Order 41 Rule 11 C.P.C. I am unable to accede to the submission and requests made by the learned counsel for the appellant. Admittedly, by virtue of the Partition Suit having been dismissed, there is no suit pending in the court below in the eye of law and if there is no suit pending in the court below, this Misc. Appeal cannot be maintained because it seeks to impugne an order which had been passed in a suit which is not in existence at the present moment having been dismissed. In the facts and the circumstances of the case, I see no apparent reason or justification in keeping this appeal pending any further. It is accordingly dismissed under Order 41 Rule 11 C.P.C. Before I part, I may observe that in the event of the Partition Suit in the court below being restored to its original file, the appellant herein, who happens to be the plaintiff in the suit, shall be at liberty to avail all remedies that may be available to him in event of such restoration. P.S. (Abhijit Sinha,J)