RAGHBIR Vs. SHARBATI

JUDGEMENT

(1.) This is defendants' appeal against the judgment and decree of the lower appellate Court reversing the judgment and decree of the trial Court thereby decreeing the suit of the plaintiffs, as prayed for.

(2.) Briefly stated, the plaintiffs filed suit for declaration to the effect that they are owners in possession of land detailed in the headnote of the plaint to the extent of 1/2 share and that the mutation No. 70 which records defendants to be owners to the extent of 3/5 share and the plaintiffs 2/5 share in respect of total holding being illegal and inoperative does not bind the rights of the plaintiffs.

(3.) The suit, in the present instance, was instituted on 21st August, 1961 (suit No. 147 of 1961) against the defendants but the same was withdrawn with permission to institute a fresh suit on the same cause of action, which permission was granted by the Sub Judge 1st Class, Mahendergarh, vide order dated 24th August, 1962. In view of this order of the Court, the present suit was instituted against the defendants. It may also be mentioned here that this order granting permission to institute fresh suit was challenged by one of the defendants Raghbir by means of a Revision Petition in this Court which was admitted and finally decided by I.D. Dua, J. (Civil Revision No. 648 of 1962), who dismissed the same with the observation that though strictly speaking there was no reason to grant permission in terms of Order 23 Rule 1 of the Code of Civil Procedure, yet in view of the fact that fresh suit too had been instituted which is at a preliminary stage, no useful purpose would be achieved by reopening the earlier suit which stands consigned. However, the learned Judge ordered that the old suit be consolidated with the present suit and further debarred the plaintiffs from making any variation in the new plaint. With these observations the Revision Petition was dismissed.