VENUTAI MOTIRAM GHONGDE Vs. SADASHIV PARASHRAMJI MADGHE

JUDGEMENT

(1.) The present appeal has been filed by the original plaintiff whose suit has been held to be barred by the provisions of Order IX, Rule 9, Civil Procedure Code.

(2.) The present plaintiff filed a suit for declaration on the basis of a title and seeking possession of field Survey No. 217/2, situated at Mouza Yeloi, district Amravati. She alleged that defendant No.1 one Sadasheo, had practised fraud on her and made her sign a general power of attorney in his own favour which included power to transfer her property too. .Accordingly, power of attorney was got executed from her on December 15, 1959 . She further alleged that acting under the said fraudulent power of attorney, defendant No.1 purported to execute a sale deed on January 12, 1960 in favour of defendant No. 2, one Bhaskar Bobde. It is her case that these two defendants further purported to lease the suit field to defendant No. 1 under an alleged registered lease deed of July 19, 1960. She asserted , therefore that her title was never lost and the defendant No.3 was not the lessee of the field but was in unauthorised occupation thereof Amongst other things, she claimed declaration as to her title and also decree against defendant No.3 for possession with consequential reliefs of mesne profits . To the claim in suit all the defendants raised different pleadings including the plea that the present suit was barred under Order IX, Rule 9, Civil Procedure Code, because of the earlier suit of the being Regular Civil Suit No. 385 of 1961 having been dismissed on 7-3-1967. There were other issues including the plea that the present suit was the plaintiff based on the same cause of action being Regular Civil Suit No. 385 of 1961 having been dismissed on 7-3-1967. There were other issues including the issue of tenancy.

(3.) The first Court found in favour of the plaintiff holding that the earlier dismissal of the suit did not ensure for the benefit of defendant No.3 Accordingly declaration was granted so also a decree for possession was made against defendant No.3