SANJAY KUMAR Vs. SUBHASH

JUDGEMENT

(1.) This is a regular second ap-peal filed by the appellant/plaintiff under Section 100 CPC against the judgment and decree, dated 21.5.1999, passed by the learned Additional District Judge(I), Kangra at Dharamshala, whereby he reversed the judgment and decree, dated 17.6.1997, passed by the learned Sub Judge 1st Class(II), Kangra, decreeing the suit of the plaintiff for declaration.

(2.) Briefly stated, the facts of the case are that the appellant (hereinafter also referred to as the plaintiff) filed a suit for declaration and permanent injunction as against the origi-nal defendant Maya Dass, now represented by his legal representatives, hereinafter re-ferred to as the defendant. It was alleged by the plaintiff that he was a minor under the guardianship of his mother Began Devi, who is the natural guardian of the plaintiff and as such has no adverse interest against him. It was alleged by the plaintiff that the land in suit, as detailed in the plaint, is situated at Mohal Kaler, Tehsil and District Kangra. Defendant had filed a civil suit for posses-sion by way of pre-emption in regard to the suit land claiming his rights against the plain-tiff being agnate co-sharer with vendor. The sale in favour of the present plaintiff was made on 24.12.1982, which was challenged. The pre-emption right was claimed and the said suit filed by the defendant was contested by the plaintiff through Shri Bodh Raj, his father and natural guardian. The said suit was decreed in favour of the present defendant vide judgment dated 29.10.1986. The said judgment and decree were challenged being wrong, inoperative, un-executable and being a nullity for the reasons that the guidelines were laid down by the Hon'ble Supreme Court in the year 1986. It was alleged that since the suit was filed against a minor, who was still a minor on the date of grant of decree, the provisions of Order 32 Rule 7 CPC were not followed, no affidavit or certificate was placed on record and no explanation was given as to how the decree and judgment was in the interest of the minor. The compromise was also not reduced into writing and the defendant and Bodh Raj, the guardian of the plaintiff, colluded with each other and ac-cordingly execution petition was filed by the defendant. The plaintiff filed an application for review of the said judgment and decree which was disallowed and the court had di-rected the plaintiff to file a separate suit, hence the suit filed by the plaintiff.

(3.) Defendant took up preliminary objec-tions in regard to the maintainability, act and conduct, cause of action etc. On merits, he pleaded that the sale was got registered through Bodh Raj and the suit for posses-sion was also contested by said Bodh Raj, father of the plaintiff and was reconciled by him. The suit was defended by Bodh Raj to the best interest of the plaintiff and it was reconciled and an executable decree was passed which is binding and is not nullity, hence the suit is liable to be dismissed.