RAJKUMARI AND ANOTHER Vs. SARITA AND OTHERS

JUDGEMENT

(1.) By this revision under Section 115 of the Code of Civil Procedure, 1908, the petitioners have called in question the order dated 23.1.2009, passed in Civil Suit No.63-A/2009 by the Civil Judge Class-II, Pandhurna, by which the application filed by the petitioners under Order 7 Rule 11 of Code of Civil Procedure, has been rejected, on the grounds that the learned trial Court gravely erred in not considering the fact that on the same subject matter earlier a suit was filed by the respondents/ plaintiffs in which a judgment and decree was passed to the effect that the respondents were not able to prove possession over the suit property. The suit for grant of relief of possession of the suit property was dismissed. An appeal was preferred against such a judgment and decree, but the said appeal was also dismissed by the Ist Appellate Court. Such a finding has, thus, attained finality as it was not called in question anywhere in any higher forum. However, with a view to make a claim for grant of permanent injunction, without disclosing the fact that on earlier suit possession over the suit property of the respondents/plaintiffs was not proved, saying that the possession of the respondents/plaintiffs over the suit property is being obstructed with effect from 17.6.2008, the suit for permanent injunction was filed. It is contended that by raising the grounds in the written statement, this was specifically pleaded that such a suit was barred under the law, inasmuch as, once it was found by the Court that the respondents/plaintiffs were not in possession of the suit property, interference in the said possession could not be based as a cause of action for filing of a subsequent suit. It is, thus, contended that the application was rightly filed by the petitioners/defendants for dismissal of the suit under the provisions of Order 7 Rule 11(d) of C.P.C., as suit was barred by principle of res judicata and was liable to be dismissed at that stage itself. It is contended that this particular aspect has not been considered in rightful manner by the learned trial Court and by the impugned order, such a prayer made by the petitioners/defendants has been rejected, therefore, the petitioners are required to file this revision.

(2.) This Court has entertained the revision and has granted an interim stay. The notices to the respondents were served. An application for vacating interim stay was filed. The said I.A.No.548/2011 was considered by this Court on 15.2.2012 and the same was rejected. The case was listed for final disposal at motion stage on 19.3.2012 and within the knowledge of the counsel for respondents, the date was fixed for final disposal of the revision on 22.3.2012. On two rounds, the case was called for hearing, but none appeared for the respondents to oppose the claim made in the revision on their behalf.

(3.) Learned counsel for the petitioners has drawn the attention of this Court to the judgment and decree passed in the earlier Civil Suit filed by the respondents/plaintiffs before the Civil Judge Class-II, Saonsar. The parties in the said suit were Smt. Sulochna Bai widow of Krishna Rao Kohle, Smt. Shilpa, Smt. Sangita and Smt. Sarita daughters of Krishna Rao Kohle. One Shri Dilip son of Manohar Rao, was the power of attorney holder of the said plaintiffs. The said suit was filed against one Shri Ashok son of Shri Bhanwarlal Nahar, Shri Rajendra @ Punnu son of Bhanwarlal Nahar and Smt. Rajkumari wife of Bhanwarlal Nahar and the State of Madhya Pradesh. The claim made in the said suit was for grant of possession of the agricultural land and the constructed house as also the mesne profits. In the said suit, a written statement was filed by the respondents/defendants in the said suit and out of the three defendants in the said suit, one Smt. Rajkumari wife of Bhanwarlal Nahar and Rajendra @ Punnu son of Bhanwarlal Nahar are the persons who were impleaded as defendants in the subsequent suit and are petitioners in this revision before this Court. The categorical statement was made in the written statement by the said persons that the land in suit was purchased by the said person on 29.7.1984 and by virtue of the said purchase, they were in possession of the land. Issue in this respect was framed in the said suit and Issue No.2 framed in this respect was whether the plaintiffs in the said suit were entitled to get possession of the land of Khasra No.498/4 area 0.145 hectare and land of Khasra No.498/5 area 0.020 hectare and the house constructed on the said land It was also also the issue whether the said defendants No. 1 to 3 in the said suit have illegally taken possession of the land and suit house situated on the aforesaid Khasra Numbers of the land in the month of June 1996 The evidence was recorded in this respect and the said issue was decided in negative against the plaintiffs in the said suit in no other but definite words, but categorically holding that the plaintiffs in the said suit have utterly failed to produce any evidence that they were in possession of the land of said Khasra Numbers. The entire evidence produced by the plaintiffs in the said suit was marshalled and properly considered by the trial Court and the said suit was dismissed.