IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.320 of 2020

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1.

Indra Devi Wife of Late Ram Lakshan Yadav Resident of Village-Bajidpur,

P.S. Manigachhi, District Darbhanga.

2.

Vivek Kumar Yadav @ Vivek Yadav Son of Late Ram Lakshan Yadav

Resident of Village-Bajidpur, P.S. Manigachi, District-Darbhanga.

3.

Madhu Kumari Daughter of Late Ram Lakshan Yadav Resident of Village-

Bajidpur, P.S. Manigachi, District-Darbhanga.

... ... Petitioner/s

Versus

1.

Saudagar Yadav Son of Late Sabad Lal Yadav , Resident of Village-

Bajidpur, P.S. Manigachhi, District-Darbhanga.

2.

Bibha Devi Wife of Late Nagendra Jha, Resident of Village-Jalwar, P.S.

Simri, District-Darbhanga.

... ... Respondent/s

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Appearance :

For the Petitioner/s

:

Mr. Rajesh Ranjan

Mr. Shakti Suman Kumar, Advocates.

For the Respondent/s

:

Mr. Uma Shankar Singh, Advocate

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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

ORAL ORDER

5

01-11-2022

Heard Mr. Rajesh Ranjan, learned counsel for the

petitioners and Mr. Umashankar Singh, learned counsel for the

respondents.

2. Petitioners are defendants in the suit and have

challenged the impugned order dated 13.12.2019 by which the

preliminary issue with regard to the suit being barred under

Section 18 of Bihar Privileged Persons Homestead Tenancy Act

(in short, ‘the Act’) has been decided against the

petitioner/defendant.

3. The suit has been filed by the respondent/plaintiff

No.1 for declaration of title, confirmation of possession as well

as for permanent injunction and also for declaration that sale

deed dated 22.07.2005 is null and void and is not binding upon

Patna High Court C.Misc. No.320 of 2020(5) dt.01-11-2022

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him.

4. The defendants filed a written statement on

11.07.2008 in which they disclosed that the suit land is in their

possession by virtue of Baasgit Purcha issued in their favour

vide Bassgit Purcha Case No. 1 of 2005-2006.

5. Thereafter, the replication was filed on behalf of

the plaintiff on 18.03.2013 wherein the plaintiff alleged that

Baasgit Parcha has been obtained by the defendant by playing

fraud and prayed to treat this replication as part of the plaint.

After filing of the replication the defendants filed a petition

praying therein to frame and decide the preliminary issue first

which was allowed by the trial court vide order dated

21.05.2012 and on 15.06.2012, a preliminary issue was framed

“whether suit is barred under the Act or not and whether the suit

is liable to be dismissed ? On this issued the case proceeded and

was decided against the petitioners/defendants.

6. Learned counsel for the petitioners vehemently

challenged the impugned order and submitted that allowing the

replication itself was bad in law and was contrary to the

provisions of Order 8 Rule 9 of the CPC. Therefore, deciding

the preliminary issue against the petitioner is of no relevance

inasmuch as according to learned counsel for the petitioner,

Patna High Court C.Misc. No.320 of 2020(5) dt.01-11-2022

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before filing of replication by the plaintiff no leave of the court

was obtained. He further submits that the plaintiff has entirely

come out with a new case by way of replication which is

inconsistent with the statement made by the plaintiff in the

plaint which was filed for declaration of title and for declaration

of sale deed dated 22.07.2005 as null and void. He further

submits that there should be harmonious construction between

two provisions of the CPC i.e., Order 8 Rule 9 as well as Order

6 Rule 17 inasmuch as Order 8 Rule 9 prescribes for leave of

the court before filing of the subsequent pleading and the

plaintiff in order to avoid the rigors of Order 6 Rule 17 has

adopted the recourse of Order 8 Rule 9