NARENDRA KUMAR AGGARWAL Vs. DEVKI NANDAN SARRAFF

JUDGEMENT

(1.) It is defendants revision preferred under Sec. 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.), where the defendant has put a challenge to the impugned order of 22/5/2017, as it has been passed by the court of learned Civil Judge (Senior Division) Kashipur, District Udham Singh Nagar in Suit No.17 of 2014 Devki Nandan Sarraff vs. Narendra Kumar Aggarwal & Others, whereby the learned trial court, had decided the issue no.7, relating to the implications of Order 2 Rule 2 of C.P.C. against the defendant.

(2.) Brief facts of the case are that the plaintiff/respondent herein on 21/1/2014, had instituted a suit in relation to the disputed property which was more appropriately described at the foot of the plaint constituting, to be a property in the shape of an angan, staircase and a chabutra, as depicted by the plaint map by figure EFGHIJ. The nature of degree, which was sought therein by the plaintiffs as modulated was a simiplicitor suit for grant of decree of permanent injunction, as against the defendant therein, but what would be of more concern for this Court, for the purposes of the present revision is, that if the pleadings raised in the plaint, which was instituted on 21/1/2014 is taken into consideration in its totality particularly the pleadings, which were raised in para 8 and para 10 of Suit No.20 of 2014, the plaintiff therein has consciously made an observation and a pleading to the effect, 'that the sale deed of 4/12/2013, which was executed in favour of defendant no.5, was to be a deed of conveyance, which was bad in the eyes of law and was an ineffective document', based on which it was conducted by the plaintiff that the defendant could not have claimed any right in relation to the property in question.

(3.) The nature of pleading, which was modulated in para 10 of the suit itself, where the plaintiff was conscious about the legal impact of sale deed dtd. 4/12/2013, where the averment has been made, 'for the sale deed conferring the right on defendant no.5 was a fraudulent document or was a nonest document'. Meaning thereby the plaintiff therein, when he had instituted the suit on 21/1/2014 had foundationed his relief for the grant of decree of permanent injunction only, on the basis of the sale deed which was then only was pleaded to be void. In that eventuality the voidablity of a document creating a right in favour of the defendant, was a conscious pleading which had been raised by the plaintiff in Suit No.20 of 2014, it ought to have at that time itself should have contained a relief for giving a challenge to the sale deed of 4/12/2013 itself but for the reasons best known to the plaintiff, the relief was modulated and limited only for the grant of decree of permanent injunction.