SUKH LALL SINGH Vs. KRISHNA BEHARI PRASAD

JUDGEMENT

(1.) IN the suit out of which this appeal arises the plaintiffs alleged that on the 27th June, 1900, the defendants 3rd party had mortgaged the disputed land in favour of the defendants 2nd party, who made an assignment of the mortgage on the 21st May, 1925, in favour of Kauleshwar Kuer and Rajbansi Kuer by a deed of assignment. On the 29th June, 1943, defendants 3rd party redeemed the mortgage, and on the 18th December, 1944, defendants 3rd party sold the Hind to the plaintiffs. A suit was brought by Nanhakchand, ancestor of the plaintiffs, in the year 1940, against defendants 1st party, on the ground that they were in possession as trespassers after the redemption of the mortgage. The suit was dismissed on the 13th May, 1947. An application was made by Nanhakchand under Order 9, Rule 9, Code of Civil Procedure, but that was also dismissed. There was a civil revision application filed before the High Court aginst the order of the trial court dismissing the application under Order 9, Rule 9, Code of Civil Procedure, but the civil revision application was also dismissed by the High Court on the 3rd December, 1948. It appears that Nanhakchand died in January, 1952, and on the 7th June, 1952, there was commutation of rent made by the Commutation Officer on the application of the defendants 1st party with regard to the disputed land. The present suit has been instituted by the sons and widow of Nanhak-chand and the reliefs claimed are, firstly, a Drayer for recovery of possession of the disputed piece of land and, secondly, a prayer for a declaration thaf the order of the Rent Commutation Officer commuting the rent of the holding on the application of the defendants 1st party was ultra vires and without jurisdiction. The trial court gave a decree in favour of the plaintiffs with regard to the declaration regarding the invalidity of the order of commutation of rent, but with respect to the prayer for recovery of possession the trial court held that the claim was barred under the provisions of Order 9, Rule 9, Code of Civil Procedure. The plaintiffs made an appeal before the lower appellate court which reversed the decree of the Munsif and gave the plaintiffs the relief with regard to recovery of possession of the land and ejectment of the defendants 1st party therefrom.

(2.) THE main question presented for determination in the present appeal is as to whether the claim of the plaintiffs with regard to the ejectment of the defendants 1st party from the disputed land is barred under the provisions of Order 9, Rule 9, Code of Civil Procedure, which runs as follows :