CHATTER SAIN CHATRU Vs. MANPHOOL

JUDGEMENT

(1.) This second appeal has been filed by the appellants against the judgment and decree passed by the Additional District Judge, Karnal on 18.1.1979, by which the appeal of Manphool, defendant-respondent, was allowed and the judgment and decree passed by the Subordinate Judge Ist Class, Panipat on 19.9.1973, was set aside.

(2.) The allegations in the plaint are that the plaintiff Nihala was the owner- in-possession of the suit land and Manphool defendant-respondent never cultivated the suit land and had no right, title or interest in- that land; that the defendant-respondent filed a suit for declaration in the year 1972 against the plaintiff, alleging that he (defendant-respondent in the present case) was in adverse possession of the suit land; that the defendant- respondent, who was the plaintiff in that suit, got that suit decreed by playing fraud upon the plaintiff as well as upon the Court, and, therefore, the judgment and decree in that suit is based upon fraud and is not binding upon the plaintiff; that Manphool defendant-respondent brought Nihala plaintiff to Panipat under the pretext that he would get a Pattanama executed in favour of the plaintiff and (plaintiff) would cultivate the suit land as a tenant; that Manphool defendant-respondent got a written statement executed from the plaintiff admitting the claim which was made by Manphool in that suit; that written statement was never read over to the plaintiff and, in this way, Manphool got the decree for declaration in his own favour; that the plaintiff came to know about this fact in December, 1972; that the plaintiff was in actual cultivating possession of the land, in dispute; and that the defendant-respondent never dispossessed him from the land, in dispute.

(3.) Manphool defendant-respondent, filed written statement, alleging that the decree passed in Suit No. 718 of 1972 was binding upon the plaintiff as he was a party to it and that the present suit was not maintainable unless that decree was set aside. It was also alleged by the defendant-respondent that the present suit was barred by principles of res judicata; that the plaintiff was estopped from filing the present suit by his own conduct and that the plaintiff was not in possession of the suit land and, therefore, his suit for mere declaration is not maintainable. It was denied by the defendant- respondent that the plaintiff was in possession of the suit land. It was also alleged by the defendant-respondent that the judgment and decree passed in the previous suit filed by Manphool defendant-respondent was rightly passed and, therefore, the same was binding upon Nihala plaintiff.