HARI SHANKAR PRASAD, J. - (1.) THIS appeal at the instance of the appellant is directed against the judgment dated 7.7.1997 passed in Title Appeal No. 2/5 of 1993/97 whereby and whereunder, the learned 2nd Additional District Judge, Godda set aside the order dated 15.4.1993 passed by the Sub -ordinate Judge, Godda in Title Suit No. 31 of 1991 and remanded the matter back to the trial Court.
(2.) FACTS briefly stated are that plaintiffs, who are respondents here, filed a Title Suit No. 31 of 1991 for declaration of title and confirmation of possession and/or in the alternative recovery of possession and for permanent injunction. Further prayer was made that orders passed by the Deputy Commissioner in RMA No. 12/81 -82 on 23.12.1981 and by Commissioner in R. Misc. Appeal No. 225/84 -85 on 29.4.1985 be declared as void, illegal and without jurisdiction. Further case of the plaintiff is that the disputed land originally belongs to Karulal Choudhary who died in the year 1930 leaving behind his Son Bahulal Choudhary, who also died in the year 1934 leaving behind his widow Manti Devi whose sons were defendants Nos. 3 to 6 in the Title Suit No. 31 of 1991, but they are appellants here. It was further contended on behalf of the plaintiffs that due to ill health, Babulal Choudhary had given possession of some lands to the father of the plaintiff and after the death of Babulal Choudhary, Manti Devi came in the possession of all the land except the disputed land. In February, 1937, Manti Devi executed Kurfa deed in favour of Bulla Pandit, but later on Manti Devi under pressure from her daughter and daughter 'sson, filed a Title Suit No. 92 of 1961 for recovery of possession of plot No. 79 and the same was dismissed in terms of compromise vide order dated 31.8.1961. Thereafter, name of the father of the plaintiff was mutated in Government records, Thereafter defendants Nos. 3 to 6 filed an application on 24.9.1979 under the provisions of Secs. 20 and 42 of the Santhal Praganas Tenancy Act, 1949 (hereinafter to be referred to as 'SPT Act ') for eviction of Bulla Pandit from plot No. 79 vide RER Case No. 510 of 1978 -79 before Sub -divisional Officer. Godda who dismissed the application. Then they Hied RMA No. 12/91 -82 before the Additional Deputy Collector. Sahebganj which was allowed vide order dated 23.12.1981. Being aggrieved by the order, Bulla Pandit filed an appeal being RMA No. 225 of 1985 before the Commissioner, Bhagalpur, but that was also dismissed vide order dated 22.4.1985/29.4.1985. Aforesaid order was challenged by the plaintiff vide CWJC No. 3221 of 1985 before the High Court, but Bulla Pandit died during the pendency of the appeal before the Commissioner and ultimately, the writ petition was dismissed as withdrawn vide order dated 1.8.1985 and thereafter the instant suit has been filed. Defendants appeared in the suit and filed a petition for rejecting the plaint on the ground of its non -maintainability under Sec. 63 of the SPT Act as well as Limitation Act. Later on, defendants filed written statement denying the entire case of the plaintiffs such as, giving of land by Babulal Choudhary to Bulla Pandit or the execution of Kurfa deed by Manti Devi on compromise. It was further submitted that pursuant to the order passed by the authorities in RER Case, delivery of possession of lands was effected by the Sub -division Officer in favour of the defendants and the delivery of possession was confirmed on 26.6.1987 and, the suit was filed beyond three years after that. Thereafter a petition under Order XIV, Rule 2"(2) of the Code of Civil Procedure was filed and the learned Sub -ordinate Judge after framing preliminary issue, dismissed the suit under the provisions of Sec. 63, SPT Act. Thereafter respondent Nos. 1 and 2 filed Title Appeal No. 2/93 before the District Judge, Godda which was heard by the learned 2nd Additional District Judge on transfer to his Court and after hearing both the sides, set side the order dated 15.4.1993 in Title Suit No. 31 of 1991 and remanded the matter back to the trial Court and against that order of remand, appellants have come in this miscellaneous appeal.
(3.) LEARNED counsel for the appellants while assailing the judgment submitted that in fact, in the suit a plea under Order VII. Rule 11 was taken up and Order VII, Rule 11 clearly provides for rejection of the plaint if a suit is barred by any provisions of law. Learned counsel further submitted that Sec. 63, SPT Act, which - is quoted hereinbelow : - "63. No suits shall be entertained in any count to vary, modify or set aside either directly or Indirectly, any order of the Deputy Commissioner on any application which is cognizable by the Deputy Commissioner under this Act and every such order shall subject to the provisions of this Act relating to the appeal and revision be final : Provided that nothing contained in this section shall bar the jurisdiction of civil Court in matters in which it had jurisdiction immediately before the commencement of this Act." clearly bars jurisdiction of the civil Court in entertaining any suit which is filed for varying, modifying or setting aside the order, of the Deputy Commissioner or Commissioner passed under SPT Act. Learned counsel further submitted that the plaintiffs -respondents has filed the suit for setting aside the order of the Commissioner passed in RER dated 24.5.1984 and thus. the suit clearly comes under SPT Act and when Sec. 63, SPT Act comes into play, then no suit can lie under this Act because jurisdiction of the civil Court stands barred by the aforesaid Sec. 63. Learned counsel further pointed out that Commissioner, Bhagalpur Division has not been made party and the order of the Commissioner was the subject matter of challenge. Learned counsel further pointed out that in fact, possession is with the appellants -defendants and in such a situation, no suit can lie. Learned counsel further submitted that in fact this appeal was not at all maintainable.;