ATTAR SINGH Vs. SHER SINGH

JUDGEMENT

(1.) PLAINTIFF Sher Singh filed a suit seeking a decree for possession by way of ejectment of the defendant from the land in dispute. The suit of the plaintiff was decreed by the Civil Judge (Jr.Divn.) Charkhi Dadri vide judgment and decree dated 8.9.2005 and in appeal, the same were upheld by the Additional District Judge, (Fast Track Court) Bhiwani vide judgment and decree dated 23.4.2008. Hence, the present appeal by the defendant.

(2.) BRIEF facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under :- "Shorn of details, the claim of the plaintiff, culled out from the plaint, is that he filed a suit seeking possession of the suit land measuring 48 kanals-9 Marlas, detailed and described in the heat note of the plaint, by way of ejectment, on the allegation, that the suit land was the ancestral property of the plaintiff in the hands of his father from his forefathers and he was birth right in it. His father sold the suit land without any legal necessity to the defendant vide sale deed 662 dated 18.10.1965 and he filed a civil suit No. 212 dated 19.6.1966, titled as "Sher Singh v. Attar Singh and another" seeking declaration the sale deed, in question, was without legal necessity and not binding on the rights of the plaintiff, which was decreed vide judgment and decree dated 3.7.1969. The defendant had limited rights of use and enjoyment of the suit land till the death of father of the plaintiff, who died on 25.9.2003 and thus, the suit land has to revert to the plaintiff free from all kind of encumbrances and as such, he has become entitled to get the possession of the suit land from the defendant and entitled to get the suit land mutated in his name. The plaintiff has requested the defendant to admit his claim, which remained barren of results. All these facts and circumstances culminated in the institution of the suit. On notice, the defendant appeared and resisted the suit, tooth and nail, having filed a written statement, vide which, some preliminary objection viz. Locus standi, maintainability of suit, estopped, suit being bad for non joinder and mis-joinder parties and suit being barred under Order 2 Rule 2 CPC. etc. were taken. The defendant further alleged that father of the plaintiff had sold the suit land to the defendant for a valuable consideration in the year, 1965 and since, he is continuing as owner in possession of the suit land. He denied that he has limited right in the suit land till the death of father of the plaintiff and the suit land was to be reverted back to the plaintiff after the death of his father. Denying other allegations, lastly, it was prayed that the suit deserves to be dismissed."

(3.) WHETHER the plaintiff is estopped by his own act and conduct to file the present suit ? OPD