IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.718 of 2009 Indradeo Singh Versus Manrakhan Singh & Ors ---------------------------------- 05. 20.12.2011 I.A.No.7094/2009 This interlocutory application has been filed on behalf of the petitioner stating therein that the sole petitioner died on 28.07.2009 leaving behind his heirs and legal representatives as mentioned in paragraph no.4 of the petition. The petition has been filed within time. This interlocutory application is allowed and the heirs and legal representatives of the sole petitioner as mentioned in paragraph no.4 of the petition are substituted in his place after expunging his name from the records of this application. It has been submitted that all the heirs and legal representatives have appeared in this case by filing Vaklatnama. C.R.No.718/2009 Heard the learned counsel for the petitioner on merits. The petitioner raised objection in the court below to the maintainability of the suit on the ground 2 that earlier the suit had abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and thereafter the plaintiff had contested the matter before the Consolidation Courts up to the highest authority under that Act. It has been submitted on behalf of the petitioner that the objection was earlier raised on this ground before the court below regarding the maintainability of the suit which was rejected. Thereafter the matter came before this Court at the instance of the defendant-petitioner in C.R.No.2504/98 and after hearing the parties the said revision application was disposed of with following observation. “In that view of the matter, the impugned order passed by the court below is hereby kept in abeyance and liberty is given to the petitioner to make amendment if he so desires, but the maintainability point, even after the amendment is made, is also to be considered by the learned court below in its proper perspective if objection comes in that way in the additional written statement to be filed from the side of the defendant-petitioner”. It appears that thereafter the 3 plaintiff has made amendment in the plaint which fact is apparent from Annexure-6 which is the reply dated 05.10.2007 filed by the plaintiff to the objection of the defendant-petitioner regarding maintainability of the suit. Learned counsel on behalf of the defendant- petitioner has submitted that after the amendment by the plaintiff the objection as contained in Annexure-5 has been filed raising the question of maintainability of the suit. By the impugned order the court below has rejected the objection raised on behalf of the defendant-petitioner holding therein that no order passed by the Consolidation Officer has been challenged in the suit and therefore, the suit is maintainable. After hearing the submissions on behalf of the petitioner and considering the impugned order, it appears that on the earlier occasion this matter had been considered by this Court and liberty was granted to the plaintiff for amendment and also to the defendant to file additional written statement and to raise 4 objection regarding maintainability of the suit therein. It is the submission of the learned counsel on behalf of the petitioner that Annexure-5, which is the objection to the maintainability of the suit, is in fact, the additional written statement as mentioned in the earlier order of this Court. From the perusal of Annexure-5 it does not appear that it is in the nature of additional written statement rather it appears to be only an objection or at the most a petition questioning maintainability of the suit. Learned counsel has submitted that if the objection in Annexure-5 is taken to be the written statement then the condition mentioned in the earlier order of this Court could be fulfilled. From the order of this Court as referred earlier, it does not appear that the maintainability of the suit was to be determined as preliminary issue and the only liberty was given to the defendant-petitioner to raise the objection by way of filing additional written statement and only thereafter the question of maintainability was to be decided. The additional written statement does not appear to have been filed after the amendment of plaint. Moreover, the finding of 5 the lower court in the impugned order is that the plaintiff has not assailed any order passed by the consolidation authority rather the suit has been filed as a suit simpliciter for declaration of title. As such there is no illegality or error of jurisdiction in the impugned order. This revision application is accordingly, dismissed. However, it will still be open to the defendant-petitioner to press his objection if, raised in his additional written statement, in accordance with the direction of this Court made in earlier civil revision application. Nitesh ( V. Nath, J.)