AMIT RAWAL,J. - (1.) Appellant/defendants No. 5, 6, 8, 10 and 12 are in Regular Second Appeal against the concurrent findings of facts and law, whereby, decree for possession of the suit land described in red colour in the site plan and forming part of the land measuring khasra Nos. 2312/0-9, 2313/1-16, 2359/4-5, situated in the area of revenue estate of Moga Mehla Singh, khewat No.6106, khatauni No.7240 as mentioned in the jamabandi for the year 1977-78 and decree of mesne profits of Rs. 4,00,000/- along with interest @ 6% per annum from the date of filing of the suit till realization, has been granted.
(2.) Mr. B.S. Bhalla, learned counsel appearing on behalf of the appellants submits that suit was filed in a representative capacity by invoking the provisions of Order 1, Rule 8 of the Code of Civil Procedure which envisage permission of the Court to pursue the suit, much less, defend the suit for the benefit of all the persons so interested. However, in the instant case, no such permission has been granted. Though independent application was filed and therefore, in the absence of statutory permission, the suit was liable to be dismissed. He further submits that besides this, various other objections had been taken in the written statement vis-a-vis acquisition of title on the basis of adverse possession but for the purpose of present Regular Second Appeal, he confines his prayer with regard to non-compliance of provisions of Order 1, Rule 8 of the Code of Civil Procedure, ibid. In support of his contention, he has relied upon the judgment of the Hon'ble Orissa High Court rendered in Lakhana Nayak and another v. Basudev Swamy and others, AIR 1991 Orissa 33 to contend that in the absence of compliance of the provisions of sub-rule (2) of Rule 8 Order 1 of the Code of Civil Procedure, the suit is liable to be dismissed. He also submits that there is no order of the Court where a permission has been granted under sub-rule (2), and at the plaintiffs' instance, institution of the suit has not been notified to all the persons so interested either by personal service or by public advertisement. In support of his contention, he has also drawn attention of the Court to the findings rendered by the trial Court on the specific issues framed in this regard but no reason has been assigned, thus, urges this Court to formulate the following substantial question of law which reads thus:- "Whether in the absence of the permission granted under Order 1, Rule 8 of the Code of Civil Procedure, in a suit filed, presumption suit would fail or not?"
(3.) On the other hand, Mr. Gaurav Chopra, learned counsel appearing on behalf of the respondents submits that prior to filing of the present suit which has been filed on 31.05.1984, defendant No.9 -Union on behalf of all 400 members filed a suit against the respondent-plaintiffs seeking injunction not to interfere into peaceful possession, and as well as, not to forcibly dispossess. The said suit was filed on 24.03.1982 which was decreed on 26.10.1983. It is only thereafter, the present suit for possession was filed in the year 1984. Once notice of the suit along with application has been issued to the contesting respondents, much less, Trade Union has been arrayed as respondent No.9, permission under Order 1, Rule 8 of the Code of Civil Procedure, deemed to have been granted. In support of his contention, he has relied upon the judgment of the Hon'ble Patna High Court rendered in Ramrup Pandey v. Kamla Pradas Sinha and another, 1981 AIR (Patna) 315 and as well as judgment of the Hon'ble Calcutta High Court rendered in Christopher Housing Developers Pvt. Ltd. v. Manjit Poddar, 2011 (4) Cal. H.C.N. 152. He has also drawn attention of this Court to the findings rendered in paragraph 13 of the judgment by the Lower Appellate Court. Thus, urges this Court that concurrent findings cannot be interfered until and unless, substantial question of law arises as the substantial question of law sought to be raised does not arise and thus, prays for dismissal of the appeal.;