KIRPARAM Vs. RAMJILAL

JUDGEMENT

(1.) THIS is second appeal against the judgment and decree of the Addl. Commissioner, Jaipur, dated 16. 12. 59 by which he rejected the appeal of the defendant appellant against the judgment and decree of the Asstt. Collector, Behror, dated 22. 3. 57.

(2.) THE suit had been preferred by the respondent Ramjilal on 1. 7. 54 for the recovery of possession of the disputed land. Pusaram and Ganga Sahai were the original Khatedars of the disputed land. Ganga Sahai pre-deceased Pusaram. Pusaram died in 1944-45. Kirparam, appellant, claimed heirship on the basis of adoption and got the disputed land mutated in his name. THE respondent failed against him in appeals as well. In the meantime, the land-lords of the land respondents No. 2 to 8 made encroachment upon the disputed land. THE appellant filed a suit against them and obtained a decree of possession, which was confirmed by the High Court also and he got possession as a result thereof in 1949. In 1946 respondent Ramjilal filed a suit against the appellant Kirparam for a declaration that he was the heir of the deceased Khatedar Pusaram as a reversioner and that the adoption deed on the basis of which appellant Kirparam made his claim be cancelled. This suit was dismissed by the trial court but was decreed by the first appellate court on 26. 2. 54. THE High Court was also pleased to confirm this decree on 9. 9. 59. THE respondent Ramjilal on getting the decrees in his favour in the suit referred to above preferred the present suit for possession on 1. 7. 54. He alleged that the appellant Kirparam was a trespasser on the land. THE suit was brought under Item 10, Schedule First Group B of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act of 1951. In this suit it was alleged that the appellant Kirparam had entered upon the land as trespasser on 11. 3. 49. THE suit was contested on the ground that it was barred by limitation because the appellant Kirparam would be deemed to be in possession of the land both on the date 14. 6. 46 when the first suit for declaration and cancellation of adoption deed was preferred and also on 11. 3. 49 when he got the possession back from the land-lord. Sec. 184 of the Alwar State Land Revenue Act was relied upon in this connection with the allegation that it required such suits to be brought within one year of dispossession. THE other contention raised was that the suit was barred by the provisions of 0. 2, r. 2 of the Code of Civil Procedure inasmuch as the respondent Ramjilal should have prayed for the relief of possession as well in the previous suit for declaration and cancellation and that because of his having not done so he should be deemed to have given up that relief and the present suit could not be entertained. It was also contended that there was a case of mis-joinder of parties and that the causes of action too had not been disclosed.

(3.) WE have already discussed above that in the present case the cause of action was identical and so this ruling cannot be applicable to the present suit.