NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.3936­3937  OF 2019 (@ SPECIAL LEAVE PETITON (CIVIL) NOS .9929­9930 OF 2019)

[D. NO. 4632 OF 2018]

Om Prakash Ram .....Appellant

Versus

The State of Bihar & Ors. Etc.        .....Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Delay condoned.

2. Leave granted.

3. The father of the fifth respondent herein, Sidheshwar

Prasad, i.e. the late Brhamdeo Narayan, at the first instance, filed

Title  Suit  No.  105/1970 for  declaration  of title, restoration  of

possession and for eviction of the predecessor­in­interest of the

appellant and certain other persons in the year 1970 in respect of

the disputed property, which came to be dismissed on

09.06.1971. The same person, i.e., Brhamdeo Narayan, filed

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another suit in the year 1988 (i.e. after 17 years) for declaration

and  for injunction against the  appellant  herein  and  the  State

Authorities in respect of the  disputed  property. The  said suit

(renumbered as Title Suit No. 32/1993), with the fifth respondent

and his  mother and brother brought on record as the legal

representatives of the original plaintiff after his death by means

of substitution, came to be decreed ex­parte against the appellant

and others on 06.06.1994. No notice was served on the

defendants in the said suit.  On 21.11.1994, the appellant herein

filed  what eventually came to be  numbered as  Miscellaneous

Case No.  6/1999,  for  setting aside the ex­parte  judgment and

decree dated 06.06.1994 passed against him. After a long­drawn

trial in Miscellaneous Case No.  6/1999,  the same came to be

allowed on  21.05.2003, and consequently the ex­parte  decree

passed against the appellant and others on 06.06.1994 in Title

Suit  No. 32/1993  was set aside, and the said title suit  was

restored to its original file and number.   It was specifically held

that notice had not been served on the appellant herein (a

defendant in the Title Suit No. 32/1993).   On 29.08.2006, the

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said suit (by now renumbered as Title  Suit  No.  01/2003) was

dismissed.

4. Meanwhile, taking advantage of and based on the ex­parte

decree dated 06.06.1994, the fifth respondent initiated three

proceedings (i.e. demarcation, writ and contempt). He first

initiated Demarcation Case No. 49/1997 before the demarcation

Court, praying for the demarcation of R.S. Plot No. 313 (i.e. the

disputed property), for the erection of a boundary wall, and for

the fixing  of  permanent  pillars.  In the  said  demarcation case,

neither the appellant nor his predecessor­in­interest were made

parties. The demarcation case was allowed on 08.01.1998, with

directions for getting R.S. Plot No. 313 demarcated and for the

submission of a report. Though such direction was issued by the

demarcation Court on 08.01.1998 in favour of the fifth

respondent, the  same was  not implemented  by the  concerned

authorities, probably due to the pendency of Miscellaneous Case

No. 6/1999.   Hence, the fifth respondent next approached the

High Court of Judicature at Patna in CWJC No. 3221/2003 for a

direction to implement the order passed in Demarcation Case No.

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49/1997. In the said writ petition also, the fifth respondent did

not  implead either the appellant or his predecessor­in­interest.

The writ petition came to be allowed on 10.01.2008 by the High

Court of Judicature at Patna with a direction to implement the

order passed  in Demarcation Case No.  49/1997. However, the

order passed in this  writ petition  was also not implemented.

Hence, finally, the fifth respondent moved a contempt petition in

the form of Miscellaneous Jurisdiction Case No. 5323/2011

before the High Court of Judicature at Patna, in which a direction

was issued on 16.12.2015 to the District Magistrate, Gaya as well

as the Superintendent of Police, Gaya to implement the order of

demarcation in Case No. 49/1997, and order dated 10.01.2008

in CWJC No. 3221/2003. The orders passed in the demarcation

case and the writ petition were subsequently implemented. The

possession of the demarcated property was also handed over in

favour of the fifth respondent, that is to say, the appellant came

to be dispossessed  pursuant to the order dated 16.12.2015.  

It is relevant to  note that the  appellant  was not  made a

party in Title Suit No. 01/2003, CWJC No. 3221/2003 or

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Miscellaneous Jurisdiction Case No. 5323/2011, and

consequently, the appellant did not have notice with respect to

any of these proceedings.   However, the appellant did file Civil

Review No. 21/2011 in CWJC No. 3221/2003 on gaining

knowledge of the order dated 10.01.2008, highlighting the

suppression of  material facts by  the  fifth respondent as noted

above, but the same was dismissed with the clarification that if

the orders underlying the demarcation proceedings had been

superseded subsequently, the later adjudication would naturally

prevail, and the appellant could point out the same to the

relevant authorities involved in the dispute.

The appellant thus came to be dispossessed based on the

orders passed in the above proceedings.  As mentioned supra, the

orders passed in  Demarcation  Case  No. 49/1997, CWJC  No.

3221/2003 and Miscellaneous Jurisdiction Case No. 5323/2011

were all passed based on the ex­parte decree dated 06.06.1994.

5. We may repeat for the sake of convenience that

Miscellaneous Case No. 6/1999 filed by the appellant praying for

setting aside the ex­parte decree passed on 06.06.1994 in Title

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Suit No. 32/1993 (renumbered later as Title Suit No. 01/2003,

as noted previously) was ultimately allowed on 21.05.2003,

holding that notice was not served on the defendants in the said

title suit, including the appellant herein, and the ex­parte decree

was set aside and restored to its original file  and number.

Furthermore, the Title Suit No. 01/2003  was dismissed vide

order dated 29.08.2006. If it is so, the order passed in

Demarcation Case No. 49/1997 and the subsequent orders

passed in CWJC No. 3221/2003 and Miscellaneous Jurisdiction

Case No. 5323/2011, which were passed based on the ex­parte

decree in the title suit, are also liable to be set aside, and

possession needs to be restored in favour of the appellant.

6. In this backdrop, the appellant filed CWJC No.1806/2016

before the High Court  of  Judicature at  Patna  for recalling  the

order dated 10.01.2008 passed in CWJC No. 3221/2003 and the

order dated 16.12.2015 passed in  Miscellaneous Jurisdiction

Case No. 5323/2011. Unfortunately, the High Court dismissed

the writ petition vide order dated 29.03.2016 with costs of

Rs.25,000/­, with a direction to the District Collector, Gaya to

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recover the amount from the appellant. The said order was partly

confirmed by the Division Bench of the High Court of Patna in

LPA No. 831/2016 vide order dated 06.06.2016, only being

modified in terms of setting aside the costs imposed, as the

counsel for the appellant had limited his argument to this issue.

The same was confirmed in Civil Review No. 563/2016 vide order

dated 20.11.2017, dismissing the appellant’s prayer to decide the

matter on  merits.   These two orders are impugned in these

appeals.

7. As mentioned supra, the entire exercise by the fifth

respondent to get the disputed property demarcated and to

secure possession thereof was based on the ex­parte decree dated

06.06.1994 passed in Title Suit No. 32/1993. Though

Miscellaneous Case No. 6/1999 had been filed by the appellant

for setting aside the ex­parte decree and was pending before the

District Court, the fifth respondent suppressed the said fact and

got the property in Demarcation Case No. 49/1997 demarcated,

and  thereafter in  spite  of the  ex­parte  decree  being  set  aside,

obtained possession of the property in question by virtue of the

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orders of the High Court in CWJC No. 3221/2003 and

Miscellaneous Jurisdiction Case No. 5323/2011. Though

Miscellaneous  Case  No.  6/1999 for setting  aside the ex­parte

decree was allowed on 21.05.2003 and the ex­parte decree dated

06.06.1994 was set aside, the proceedings on the basis of  the

order passed in the demarcation case continued before the

learned single Judge and the contempt Court, with a clear

suppression of material facts by the fifth respondent. Therefore,

the orders passed by the concerned officer in Demarcation Case

No. 49/1997, the orders passed by the High Court of Judicature

at  Patna  in CWJC No.  3221/2003, (including the  order  dated

27.02.2013 passed  in Civil  Review No.  21/2001  in CWJC No.

3221/2003), the order dated 16.12.2015 passed in Miscellaneous

Jurisdiction Case No. 5323/2011 and the order dated

29.03.2016 passed in CWJC No. 1806/2016, are liable to be set

aside. Consequently, the impugned orders dated 06.06.2016 and

20.11.2017 are also set aside.    

8. It is evident that the possession of the property in question

needs to be restored in favour of the appellant, inasmuch as he

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was dispossessed based on the ex­parte decree dated 06.06.1994

which ultimately came to be set aside, and as the underlying suit

(viz. Title Suit No. 01/2003) itself came to be dismissed vide order

dated 29.08.2006, as mentioned supra.  

9. The appeals are allowed with the above observations. It is

open to the appellant to get back possession of the property in

question in accordance with law in terms of this judgment.

..........................................J. (N.V. Ramana)

............................................J. (Mohan M. Shantanagoudar)

New Delhi; April 15, 2019

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