SALIM KHAN ALIAS PAPPU KHAN Vs. SHAHJAD KHAN

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed challenging the order dated 8/10/2013 passed by Seventh Civil Judge, Class-II, Gwalior in Civil Suit No.35A/2013, by which the prayer made by the petitioner for framing of additional issue with regard to the maintainability of the suit in absence of prayer for possession has been rejected.

(2.) It is submitted by the counsel for the petitioners that the respondents have filed one more suit against the petitioners for eviction from the property in dispute. Both the suits are pending between the same parties and the subject matter of the suit is also same. In one suit the respondents have prayed for eviction, which clearly shows that the respondents are not in possession of the land in dispute. The present suit has been filed for declaration of title and permanent injunction. Accordingly, the petitioners have filed their written statement and have specifically pleaded that the respondents are not in possession of the land in dispute. Accordingly, the petitioners had filed an application under Order XIV Rule 5 CPC seeking framing of additional issue relating to the maintainability of the suit in absence of consequential relief of possession. The said application has been rejected only on the ground that since the plaintiffs/respondents have claimed that they are in possession of the property in dispute, therefore, there is no need to frame the additional issue.

(3.) Per contra, it is submitted by the counsel for the respondents that the respondents are in possession of the property in dispute, but fairly conceded that the respondents have also filed a suit for eviction against the petitioners.