YAAD MOHAMMED Vs. RAJ KUMAR

JUDGEMENT

(1.) THIS petition is filed by the defendant challenging order dated 6.2.2006 passed by First Civil Judge Class II Ashok Nagar in Civil Suit No. 86-A/2005 whereby an application filed by the present petitioner/ defendant under section 10, CPC is rejected.

(2.) THE brief facts of the case are that petitioner has filed a Civil Suit No. 386-A/2003 for declaration of title and injunction in respect of land bearing survey No. 701 and 707 situated in village Sadora against respondent No. 1. The said suit was decreed on 30.9.2004 and first appeal No. 37-A/2004 was filed by respondent No. 1 Rajkumar. The appeal was decided on 3.11.2004 by the Second Additional District Judge, Ashok Nagar holding that the defendant No. 1 is owner of the part of the land bearing survey No. 701 and dismissed the suit in respect of land bearing survey No. 707. The second appeal was filed by the plaintiff challenging the said judgment and decree, which was dismissed by this Court on 17.10.2005. In the said judgment, this Court has laid down that the plaintiff in that case is in possession of the property and, therefore, he can be dispossessed only after following the procedure laid down by a law and the only remedy available to the defendant is to file a suit for possession. After the said judgment of this Court, the respondent has filed a suit for recovery of possession against the present petitioner while the plaintiff against the judgment and decree passed in the earlier suit, has also filed a second appeal No. 1619/05. A copy of appeal is enclosed as Annexure P-2. This Court by order dated 28.11.2005 issued notice on the application under section 5 of the Limitation Act, as the appeal filed by the plaintiff/petitioner itself was barred by limitation. The said appeal is still pending.

(3.) THE contention of learned counsel for the petitioner is that the appeal is in continuation of earlier suit and the trial Court committed error in holding that no appeal is pending before the High Court. The principles of section 10 of CPC will be applicable. In reply to this argument, counsel for the respondent inviting the attention of this Court to the judgment in the case of Chhitu v. Mathuralal [AIR 1981 MP 13]. In para 9 of the judgment this Court has observed as under :