GHULAM NABI Vs. BIMLA DEVI AND ANOTHER

JUDGEMENT

(1.) This revision petition has arisen out of order dated 10th January, 2015 passed by Sub Judge (Chief Judicial Magistrate), Udhampur (hereinafter referred to as the "Court below") in civil suit titled Bimla Devi and another v. Ghulam Nabi, whereby prayer of the petitioner for rejection of plaint made in terms of Order-VII Rule 11 of the Code of Civil Procedure has been rejected.

(2.) The litigation between the parties has a chequered history. The suit house which is owned by the petitioner is situated in Khasra No.57 of village Barrian, Udhampur. The respondents were inducted in the suit house as tenants by the petitioner. On 14th August, 1975, a suit for ejectment came to be filed by the petitioner against the respondents in the Court of Sub Judge, Udhampur. The respondents initially contested the suit and filed their written statement. However, subsequently they did not appear in the suit and were, thus, proceeded ex-parte. The suit of the petitioner for ejectment was decreed by the Sub Judge, Udhampur vide ex-parte decree dated 10th April, 1976 and the respondents were directed to be evicted from the suit house. The decree was not obeyed by the respondents, an execution petition was filed against the respondents. With a view to defeat the execution petition, the respondents filed a suit on 10th August, 1978 in the Court of Sub Judge, Udhampur seeking a declaration that the judgment and decree passed by the Court below on 10.0.1976 was a nullity having been obtained by fraud. The said suit of the respondent was dismissed on 31st December, 1987. The first appeal before the District Judge, Udhampur and the second appeal before this Court too were dismissed on 31st January, 1997 and 1st December, 2000 respectively.

(3.) After dismissal of the suit filed by Ajay Kumar, which was primarily aimed at defeating the execution of the eviction decree, the petitioner moved fresh execution petition before the Court below. The respondents with a view to perpetuate their possession over the suit house with respect to which there was a final decree of eviction passed against them, instituted another suit before the Court below seeking a declaration that on account of failure of the petitioner to file execution proceedings within the period of limitation prescribed therefor, the respondents have become owners by adverse possession. The petitioner contested the suit of the respondents, inter alia, on the ground that the same was barred in terms of Section 47 of the Code of Civil Procedure. The plea of res judicata too has been taken by the petitioner in the written statement. Alongside, the petitioner also moved an application under Order VII Rule 11 CPC for rejection of the plaint on the ground that the same was barred in terms of Section 47 CPC and was also hit by the principle of res judicata. The Court below vide order impugned rejected the application filed by the petitioner primarily on the ground that whether or not the cause of action has accrued to the plaintiff and whether or not the plaintiffs had become owners by adverse possession were disputed questions of fact which needed adjudication and determination by the Court by holding the trial. It is this order of the trial Court, the petitioner is aggrieved of and assails the same inter alia on the following grounds:-