RAM KRISHAN Vs. SOHAN LAL

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment and Decree free of district Judge, Baderwah dated 30 -3 -1976 whereby he has set aside the judgment & decree of Sub -Judge, Kishtwar dated 30 -12 -1972.

(2.) IN order to understand the controversy, it is necessary to give a resume of the facts. One Sita Ram is said to be owner of the land in question & his property was mutated in favour, of the plaintiffs mother. The defendants father is said to have fought litigation for the property of Sita Ram and the matter went upto the High Court where it was decided on 10 -4 -1956, & out of the property of said Sita Ram half of the property was given to the mother of the plaintiffsâ„¢ other half was given to the defendents ancestor.The defendants thereafter are said to have presented the judgment & decree of the High Court before the Naib Tehsildar Nowgham who mutated the entire property in favour of the defendants.The plaintiffs mother is said to have died in 2022 BK & the plaintiffs are her heirs, entitled to share the property in terms of the decree of the High Court, plaintiffs claim relief of declaration that they are owners of the property as determined by the compromise decree & they be granted possession of the land also.

(3.) THE defendants seem to have resisted the suit on many grounds, main among which is that the plaintiffs cannot file a fresh suit for the same relief for which they had filed the previous suit. They had stated that they have possession over the property as owners and their possession has matured into ownership by adverse possession. The suit for possession was not within time, so on and so forth. The trial court framed as many as eight issues on which the parties were asked to lead evidence It granted a decree in favour of the plaintiffs as prayed for by them. On appeal the District Judge after narrating the facts held that the suit was barred under section 47 CPC because all matters relating to the execution, discharge or satisfaction of the decree had to be determined by the executing court and not by a separate suit . The previous suit which is said to have been compromised in terms of the decree of the High Court dated 10 -4 -1966 had determined the rights of the parties and the compromise decree was executable, instead of exercising that decree a fresh suit is filed, which is barred. The appellate court therefore on the force of provisions of section 47 CPC allowed the appeal and set aside the judgment and decree of the trial court which resulted in the dismissal of the suit.