KHIALI RAM Vs. KANSHI RAM

JUDGEMENT

(1.) The defendant is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiff for possession has been decreed.

(2.) In brief, the plaintiff filed a suit for possession in respect of the land measuring 11 Kanals 07 Marias comprised in Square No.268, Killa No.23/l(l-16), Square No.285 Killa Nos.3 (4-11), 8/1(5-0), situated in village Ding, Tehsil and District Sirsa. It is alleged by him that he has purchased the suit land on 16.06.1971 but the defendant, in collusion with the revenue authorities, succeeded in getting the khasra girdawari in his name and on the basis of this wrong entry has forcibly occupied it, though no batai was ever paid by him. In the written statement, the averments made in the plaint were denied and it was alleged that the plaintiff had earlier filed a suit in respect of the suit land which was dismissed by the learned Sub Judge, Sirsa on 28.01.1982, therefore, the present suit is not maintainable. On the pleadings of the parties, following issues were framed on 16.02.1983:-

(3.) Both the parties led their respective oral as well as documentary evidence. The defendant did not challenge the finding recorded by the learned Trial Court before the learned First Appellate Court on issues Nos.1 and 2, however, issues Nos.3 and 4 were keenly contested by him, but the learned First Appellate Court dismissed the appeal on the ground that the earlier suit filed by the plaintiff was dismissed in default of appearance but that order could not have been passed under Order 9 Rule 8 of the Code of Civil Procedure, 1908 [for short "CPC"] except for under Order 9 Rule 3 of CPC and as such, the second suit is maintainable.