1. This civil revision is directed against the order dated 5-11-2009 passed by Munsif, Danapur, in Title Suit No. 46 of 2008, whereby the application filed by the defendant-petitioner under Order 7 Rule 11 of the Code of Civil Procedure had been rejected.

2. Heard learned counsel for the defendant-petitioner and the plaintiffs-opposite party Nos. 1 and 2.

3. This revision is being disposed of at this stage with the consent of the parties.

4. Plaintiffs-opposite parties did not raise any issue with regard to maintainability of this civil revision. However, in view of the law laid down by the Division Bench in Civil Revision No. 1967 of 2009 : (AIR 2010 Patna 126) and other referred matters, it is held that this civil revision is maintainable.

5. Now, I proceed to consider this revision on its merit.

6. The defendant-petitioner had filed Title Suit No. 125 of 1969 for declaration of title and confirmation of possession and alternatively for recovery of possession with respect to open space of land and for other ancillary reliefs. The suit was dismissed by the learned Munsif-II, Patna, by judgment dated 31-3-1979 against which the defendant-petitioner (plaintiff in the aforesaid suit) preferred Title Appeal No. 78 of 1979, which was allowed by learned Additional District Judge, XIII, Patna by judgment dated 23-12-1987. Against the said judgment and decree the plaintiffs-opposite parties (defendants in the Title Suit No. 125 of 1969) preferred Second Appeal No. 78 of 1988. In the Second Appeal an order dated 11-1-2000 was passed by this Court on the application of the decree holders-opposite parties, who claimed that the judgment-debtors taking advantage of order of ad-interim injunctions were making certain constructions over the suit property upon which it was ordered that though there was no reason to restrain the judgment-debtors from making new construction but if construction is made over the suit land the same shall be subject to result of the Second Appeal and the judgment-debtors shall not be entitled to claim any equity. Ultimately the aforesaid Second Appeal was finally dismissed and the plaintiffs-opposite parties (judgment-debtors in the earlier suit) moved to the Honble Apex Court but there also they lost and finally execution proceeding was initiated. During the execution proceeding a Pleader Commissioner was appointed, who submitted a report with specific finding that the constructions made on the land in question were new and, thus, in view of the earlier order passed in Second Appeal No. 78 of 1988 and upon consideration of the report of the Pleader Commissioner, the Executing Court passed an order dated 20-11-2006 directing the building in question to be demolished and possession be given to the plaintiffs-decree holders, who are defendant-petitioner herein.

7. The aforesaid order was challenged by the defendants-judgment debtors of the earlier suit who are the plaintiffs-opposite parties herein by filing C.R. No. 61 of 2007. That civil revision was dismissed by this Court by reasoned order dated 1-5-2008, a copy of which has been appended as Annexure-2. Thereafter, it had been submitted on behalf of the defendant-petitioner that the building in question in fact was demolished. However, the plaintiffs-opposite parties filed a fresh Title Suit No. 46 of 2008 for declaration that the order dated 20-11-2006 passed by the Executing Court and all actions in pursuance thereof were fraudulently obtained by the defendant. The defendant appeared and filed a petition under Order VIII Rule 11 of the Code of Civil Procedure stating all the facts as aforesaid including the factum of order passed in Civil Revision No. 61 of 2007 and made a prayer for rejection of the plaint on the ground that no cause of action has arisen as the matter had finally been set at rest by this Court by order dated 1-5-2008 passed in the aforesaid civil revision which had attained finality on not having been challenged. Therefore, the subs