KUMAR KRISHNA NAND Vs. BABULAL SAN

JUDGEMENT

(1.) The appellants are the plaintiffs in Title Suit No. 135 of 1985, filed against the decree holder (who is defendant no. 1 Respondent no. 1 here) of Title Appeal No. 77 of 1980 arising out of Title Suit No. 86 of 1978 in which suit the appellants were not a party. The appeal arises out of an order passed by the trial Court refusing to injunct the Respondent from proceeding to execute the decree obtained by them in the latter suit.

(2.) The relevant facts are in a very short compass. The appellants, who are transferees from the widow of Brahamdeo Choudhary and his coparceners, base their claim on a deed of the year 1929 by which the ancestors of the respondents are said to have conveyed the property in dispute to the vendors of the appellants. The former suit was filed by the respondent Babulal Sah against Khadi Gram Udhyog whom he claimed to be his tenant and succeeded In obtaining a decree for eviction in which the tenant assailed the title of the plaintiffs but failed. The appellants, case is that the plantiff of the former suit had no right, title or interest in the property in dispute since their ancestors transferred the same in the year 1929 to the ancestors of the vendors of the plaintiffs. The plaintiffs seek the injunction on the ground that they being not the parties to the former suit the decree in that suit cannot be executed in a manner that would affect them injuriously. The trial court, as said above, rejected their prayer. Hence this appeal.

(3.) At the outset, I may state that serious doubts were raised by the learned counsel for the respondents regarding the identity of the land about the property involved in the former suit and the latter suit. According to the respondents, the properties in dispute are not the same. This objection was controverted by the learned counsel for the appellants by stating that in the plaint of the latter suit a boundary of the lands in dispute has been stated and due to efflux of time they could not be mentioned as some natural charges did take place. In regard to discrepancies in the plot numbers however, it was submitted that it was clerical error. Be that as it may, this point need not detain the judgment further. Suffice it to say that the trial court would have been well advised to examine this aspect of fact also and if the two plots in dispute as given by the respondents did not tally in the light of explanation of the plaintiff, that would have been end of the matter. 1, however, propose to decide this appeal on another point altogether. In my view, the appellants are not entitled, for the reasons to be stated hereafter, to maintain a suit and protection from injurious affectation is available under Order XXI Rule 97 of the Code of Civil Procedure (hereinafter referred to as 'the Code') and the consequences thereafter.