SHAM KUMAR Vs. KULDIP RAJ

JUDGEMENT

(1.) THIS revision petition is directed against an order passed by Second Addl. District Judge, Jammu on 15 -03 -1995 whereby it has been held that provisions of Order 2 Rule 2 were not applicable to the facts of the case.

(2.) THE facts in brief are that petitioner first filed a suit for declaration that sale deed executed by his mother Mst. Lajo Devi in respect of joint property on 22 -05 -1987 was null and void and inoperative against him. Subsequently petitioner withdrew the suit and filed a suit for possession on the ground of right of prior purchase. The defendant resisted the suit on the ground that in the earlier suit the relief of possession on the strength of right of prior purchase was not asked for, therefore, the suit was barred by Order 2 Rule 2 of the Civil Procedure. The trial court dismissed the plea, hence this revision.

(3.) MR . D.S. Thakur, learned counsel appearing for the petitioner - defendant has laid stress on Clause 3 of Rule 2 of Order 2. He has vehemently argued that the cause of action accrued to the plaintiff right on the date when the sale deed was executed. He challenged the sale deed by filing a suit for declaration, he omitted to seek a relief of possession, therefore, by dint of concept of constructive resjudicata, carved out by Rule 2 of Order 2 the plaintiff was debarred from filing the present suit.