RAMDEV Vs. SITA RAM

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in the second appeal preferred by the plaintiffs are as under:-

(2.) The suit property was originally held by Rambriksh. He allegedly executed unregistered gift deed dated 27.3.73 (Ex.D/5) in favour of defendants No.1 and 2. During his lifetime, Rambriksh had filed a suit bearing Civil Suit No.30A/77 (Ex.D/6) against defendants No.1 and 2 that gift deed dated 27.3.73 (Ex.D/5) is void and inoperative. In that suit, the defendants were noticed and ultimately on 18.11.77 (Ex.D/7) suit was dismissed in default. Thereafter, legal representatives of Rambriksh filed the present suit on 6.10.77 claiming title through Rambriksh that gift deed dated 27.3.73 (Ex.D/5) executed by Rambriksh in favour of defendants No.1 and 2 be declared void and inoperative and also prayed for decree of possession.

(3.) Defendants No.1 and 2 set-up a plea that suit filed by original holder Rambriksh has already been dismissed under Order 9 Rule 8 of the CPC on 18.11.77 (Ex.D/7) and that order has attained finality and therefore, the present suit is barred by Order 9 Rule 9 of the CPC. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 29.3.2000, dismissed the suit holding that suit is barred by Order 9 Rule 9 of the CPC and other ancillary findings were also recorded against the plaintiffs including that gift deed dated 27.3.73 (Ex.D/5) is not void and inoperative. On appeal being preferred by the plaintiffs, the first appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeal, against which, this second appeal under Section 100 of the CPC has been preferred by the appellants/plaintiffs, in which substantial questions of law have been formulated and set-out in the opening paragraph of the judgment.