DIWAN CHAND Vs. SARDARI LAL

JUDGEMENT

(1.) This is plaintiffs second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the respondent was accepted and the judgment and decree of the trial Court was set aside and suit of the plaintiff for possession of the property in dispute was ordered to be dismissed.

(2.) The appellant filed a suit for possession with consequential relief of permanent injunction against the respondents on the averments that he was owner of the suit property on the basis of a registered sale deed dated 10.7.1978 from its original owner and was also put into possession of the vacant plot at the time of execution and registration of the sale deed which was being used as Bara by him. It was further averred that the respondents taking undue advantage of the absence of the appellant encroached upon the plot in question. It was further contended that the appellant had filed a suit for possession against the respondents which was withdrawn by him as the respondents had handed over the possession to the appellant but subsequently, the respondents again encroached upon the plot in question. Thus, the suit for possession of the suit property was filed.

(3.) Upon notice, the respondents contested the suit raising various preliminary objections including the one that the suit was not maintainable in view of the bar under the provisions of Order 23 CPC inasmuch as the appellant had earlier also filed a suit which was withdrawn by him on 12.1.1999 without seeking permission of the Court to file a fresh suit on the same cause of action. On merits, the ownership of the appellant over the plot in question was denied. The sale deed relied upon by the appellant was stated to be a sham transaction. As per the plea of the respondents, the appellant was never in possession of the plot and they (respondents) were in possession of the plot for the last many years. Remaining averments of the plaint were denied and prayer for dismissal of the suit was made.