AMAR SINGH Vs. OM PARKASH AND ORS

JUDGEMENT

(1.) Amar Singh Defendant No. 4 has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 06.04.2009 Annexure P-5 passed by learned Civil Judge (Junior Division), Ludhiana, thereby dismissing application Annexure P-4 moved by defendant No. 4 under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure (in short, CPC) for rejecting the plaint instituted by Respondent Nos. 1 and 2 herein against proforma respondent Nos. 3 to 5 and the Petitioner herein.

(2.) This case has a chequered history. Respondent No. 1 purchased the suit land in Court auction made in execution petition filed against State of Punjab which had acquired the suit land belonging to defendant No. 4-petitioner. The auction sale was set aside by the Executing Court, but was confirmed by this Court in F.A.O. No. 2770 of 1991, vide order dated 17.03.1997. Pursuant thereto, sale certificate dated 27.04.1998 was issued in favour of respondent No. 1. Subsequently respondent No. 1 sold half part of the suit property to respondent No. 2 vide sale deed dated 14.05.1998. Respondent No. 1 filed application under Order 21 Rule 95 CPC for delivery of possession of the suit land. However, the executing Court i.e. learned Additional District Judge, Ludhiana vide order dated 20.10.1999 Annexure P-3 dismissed the said application as time barred, observing that remedy of respondent No. 2 was by way of regular suit for possession of the suit land, relying on observation of Hon'ble Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan and Anr., 1996 4 SLJ 2856. Thereafter respondent Nos. 1 and 2 filed suit for possession of the suit land against proforma respondent Nos. 3 to 5. Petitioner was impleaded as party defendant No. 4 to the suit on his application.

(3.) Defendant No. 4 moved application Annexure P-4 under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint primarily on the ground that instant separate suit for possession is not maintainable in view of application moved by respondent No. 1 under Order 21 Rule 95 CPC having already been dismissed by the executing Court. The said application was resisted by respondent Nos. 1 and 2. Learned Trial Court vide impugned order Annexure P-5 has dismissed the application moved by defendant No. 4. Feeling aggrieved, defendant No. 4 has filed the instant revision petition.