RAMANI SONI Vs. MALA DUBEY

JUDGEMENT

(1.) Challenge to this Appeal preferred by the Plaintiff is the order dated 26.03.2010 passed in Civil Suit No.4-A/2010 whereby, the learned trial Court, while allowing the application filed by the Defendants No.1 & 2 under Section 12 of the Code of Civil Procedure, 1908 (for short 'the CPC'), has dismissed the suit holding it to be barred by law.

(2.) Shri Vaibhav Tiwari, learned Counsel appearing for the Appellant/Plaintiff submits that on the basis of the earlier instituted suit, being Civil Suit No.489-A/2005 filed by the Plaintiff's mother Smt Vidya Devi against the Defendants, the instant suit has been dismissed by misinterpreting the provisions prescribed under Section 12 of the CPC. According to him, the property bearing Khasra No.284/8 and 284/7 was owned by her mother Smt Vidya Devi, but part of it i.e. Khasra No.284/37 admeasuring 1,490 sq.ft., the suit land, was subsequently purchased by the Plaintiff under the registered deed of sale dated 28.03.2000 and based upon it, a claim for declaration of title, possession and injunction in a mandatory form, which is altogether distinct from the facts involved in the earlier one, has been made and therefore, the Court below ought not to have dismissed the claim as such. Further contention of him is that the earlier suit was filed by the mother Smt Vidya Devi when on 02.02.2004, Defendants Nos.1 & 2 have tried to encroach her land forcefully therefore, the Plaintiff is not debarred and/or precluded from instituting the suit under the said provision.

(3.) On the other hand, learned Counsel for the Respondents/Defendants No.1 & 2 has supported the order impugned as passed by the trial Court.