WARIS ALI Vs. AHAD MIR

JUDGEMENT

(1.) THIS is an application to revise the order, dated 31 -12 -1966 passed by the learned Sub Judge, Rajouri whereby he decided the two preliminary issues struck in civil suit No. 8 of 1966 entitled Ahad Mir and three others versus Waris Ali and another in favour of the respondents Nos. 1 to 4 and held that the suit was neither barred under order 9 rule 9 Civil Procedure Code nor was it barred by time.

(2.) THE facts giving rise to the present petition are: In April 1960 Akhbar, the father of Mohammad Din, respondent herein, instituted proceedings under section 145 of the Criminal Procedure Code in respect of land in dispute in the court of the Sub Divisional Magistrate, Rajouri. The learned Magistrate upon being satisfied that there existed a dispute which was likely to cause a breach of peace made an interim order attaching the land. At the conclusion however of the proceedings the learned Magistrate appears to have been unable to make up his mind as to which of the parties was in possession of the land at the material point of time. Consequently vide his order dated 6 -11 -62 he directed that the plaintiffs -respondents should get their rights with respect to the land in dispute adjudicated and determined by a court of competent jurisdiction and meanwhile the land should remain attached and continue in the custody of Sardar Ghulam Nabi, Numberdar. Pursuant to this order of the learned Magistrate the respondents 1 to 4 filed a civil suit on 6th April 1965 in the court of the Sub Judge Rajouri, being civil suit No. 14 of 1965, for declaration to the effect that the land comprising Khasra Nos. 17 (measuring 23 kanals 3 marlas with Kotha thereon), and 21 (measuring 3 kanals 3 marlas with Kotha thereon), and (measuring 3 kanals 19 marlas) was in their possession as owners, and land comprising Khasra No, 638/514/517/241 (measuring 36 kanals and 3 marlas) was in their possession as tenants under the State till 16th April, 1960. In para 4 of the plaint it was alleged that the cause of action arose from 6th November 1962 the date of the Sub Divisional Magistrates order. This suit was dismissed for default of plaintiffs appearance on 26 -8 -65 the date fixed for plaintiffs evidence. Thereafter on 26 -4 -1968 the plaintiffs -respondents 1 to 4 filed suit No. 8 of 1966 in the same court and for the same relief as was sought by them in previous suit No 14 of 1965. As in the previous suit so in para 4 of the plaint of this suit also it was alleged as follows:

(3.) WARIS Ali, the petitioner herein, resisted the suit inter alia on the grounds that the previous suit having been dismissed for default of plaintiffs appearance, the present suit was barred under Order 9 Rule 9 of the Civil Procedure Code read with section 12 thereof and was also liable to dismissal as it had not been filed within the period of limitation prescribed by the Limitation Act.