YASHWANT RAO KHOGAL Vs. JAHOORBI

JUDGEMENT

(1.) This is a second appeal under Section 100 C.P.C. The following substantial question of law was formulated while admitting this appeal by order dated 18/3/1987 :-

(2.) Respondent Jahoorbi and her husband Sher Khan instituted Civil Suit No. 39-A of 1970 in the Court of Second Civil Judge, Class-II, Balaghat against Afzal Khan for permanent injunction restraining him from interfering with their possession over Khasra No. 462 area 1,50 acres and Khasra No. 463/3 area 0.50 acre of village Bisoni, Tahsil and District Balaghat. In this Civil suit Jahoorbi claimed that her husband Sher Khan had executed a registered Meharnama dated 24/4/1965 by which he had settled these lands with her in lieu of her Mehar. Defendant Afzal Khan is step son of Jahoorbi. He claimed that Sher Khan had orally gifted one acre land out of two acres to him in the year 1960. It was held by the judgment dated 7/8/1972 in that civil suit that the claim of Jahoorbi was correct. The plea set up by Afzal Khan that one acre of land was gifted to him by Sher Khan was not accepted. It was held that Afzal Khan did not acquire any title to this land, In that suit the relief of injunction was claimed by the plaintiffs. The alternative relief of possession was not claimed. Though the title of Jahoorbi on these two acres of lands was upheld, her suit for injunction in respect of one acre was dismissed as Afzal Khan was in actual possession of that one acre of land on the date of the institution of that suit in the year 1970.

(3.) Jahoorbi filed Civil Suit No. 52-A of 1974 on 13/12/1972 against Afzal Khan for possession of 0.90 acre of land which was actually in his possession. That suit was decreed on 16/12/1974. The first appeal and the second appeal against that judgment failed. The claim of Afzal Khan that he had acquired title to the land by adverse possession was negatived. That is clear from the judgment dated 21/10/1981 of this Court in Second Appeal No. 605 of 1975. The objection of the defendants that the suit was barred under Order 2, Rule 2 C.P.C. was also rejected. It was held by this Court that the earlier suit for injunction could not debar the plaintiff to sue afresh for possession. The cause of action in the two suits was held not to be identical.