KULBHUSBAN BHUTANI AND OTHERS Vs. OM PRAKASH BHUTANI

JUDGEMENT

(1.) This petition under Sec. 115 of the Code of Civil Procedure is directed against the order dated Nov. 14, 1983 passed by Shri Shiv Charan, Sub-Judge, 1st Class, Delhi determining three preliminary issues including the issue whether the suit is barred under Order XX11I of the Code of Civil Procedure.

(2.) Shri Om Parkash Bhutani, the plaintiff earlier filed a suit for a declaration and mandatory injunction. After stating facts in paragraphs 1 to 12 of the plaint, the plaintiff submitted that he and the defendants being coparcener's are entitled to the joint possession and enjoyment of the property No. 52 in Block F, situate in Kirti Nagar, New Delhi which is a co-parcenary property and he is entitled to joint possession and enjoyment of the same, that neither of the defendants can exclude from joint possession and enjoyment of the said property, that as the defendants have threatened to oust the plaintiff from the said property and the enjoyment thereof and they have refused to allow the plaintiff to the joint possession and enjoyment thereof, the plaintiff is entitled to a declaration of his right to the joint possession of the property No. F-52, Kirti Nagar, New Delhi and for a mandatory injunction restraining the defendants from obstructing the plaintiff to the enjoyment of the said property and for a mandatory injunction directing them to put the plaintiff into joint possession of the said property. The cause of action against the defendants was pleaded to have arisen at Delhi in Sept., 1969 when the defendants under threat of violence had breach of peace forced the plaintiff to leave the property in suit and thereafter on the refusal of the defendants to allow the plaintiff to joint management and enjoyment of the said property in spite of the notice dated Jan. 8, 1972. The relief claimed in the prayer clause is:-

(3.) This suit, being suit No. 475/73 was instituted in Oct., 1973. The plaintiff withdraw the suit without liberty from the Court to file a fresh one and the same was dismissed by the Court of Shri O.P. Dwivedi, Sub-Judge, Delhi.