CHATAR SINGH Vs. NINUA

JUDGEMENT

(1.) THIS second appeal has been filed by the defendants against whom the respondents' suit for a declaration and permanent injunction was decreed by the first appellate court (Additio-nal Commissioner, Jaipur) after reversing the original decree of the S. D. O. Bharatpur whereby the suit was decreed in respect of a few numbers only and was dismissed in respect of the others.

(2.) WE have heard the learned counsel for the parties and have examined the record as well. To appreciate the point involved for determination in the case it is necessary to refer to the litigation that took place between the parties prior to the institution of the present suit. The respondents instituted a suit in the court of the S. D. O. Bharatpur on 8 8-56 for a declaration and a permanent injunction in respect of the land in dispute. Subsequently a second suit, which has given rise to this second appeal, was instituted by them against the same persons in respect of the same cause of action on 25. 8. 56. On 30. 8. 56 an application was presented in the trial court for permission to withdraw the first suit which was granted and the defendants were informed not to appear on the date fixed in that case for hearing. In the present suit the defendants raised the plea that the suit was not maintainable. The trial court did not record any clear finding on this point but merely satisfied itself with the observation that the facts proved in the case revealed that the plaintiffs were capable of any misrepresentation in order to serve their interests. The defendants had also pleaded that the plaintiffs had voluntarily relinquished their tenancy over 19 Khasra numbers and that they were in possession only upon the residuary 7 Khasra numbers. Hence the suit was dismissed in respect of 19 Khasra numbers and was decreed in respect of the other 7 only. The plaintiffs went up in appeal before the Additional Commissioner. As for the plea of relinquishment it was observed by the learned Additional Commissioner that the evidence led was absolutely inadequate to justify a finding in favour of the defendants and that the circumstances of the case rendered the version of the defendants highly incredible. As for the maintainability of the suit, the lower court after noting the ruling cited by the parties merely observed that in view of the fact that permission to withdraw was obtained by the plaintiffs even after the institution of the present suit it was a technical defect not potent enough to justify a rejection of the present suit. The appeal was accordingly allowed and the suit was decreed in full.