R.L.ANAND, J. - (1.) THIS is defendant's appeal and has been directed against the judgment and decree dated 6.8.1980 passed by the Court of Additional District Judge, Ambala, who allowed the appeal of the plaintiff- respondent by setting aside the judgment and decree dated 12th January, 1979 passed by the Court of Sub Judge IInd class, Ambala City who dismissed the suit of the plaintiff-respondent Shri Babu Ram.
(2.) THE brief facts of the case are that plaintiff purchased the Bara measuring 55 feet x 40 feet from Smt. Jagiro and Bachni daughters of Bir Singh vide sale deed dated 25.6.1974 for a sum of Rs. 2000/- and also got possession of the property. It is further alleged by the plaintiff that the defendant Shri Arjan Singh took the possession of the Bara unauthorisedly and became illegal owner on 13.1.1975. Resultantly, earlier the plaintiff filed a suit for injunction but the suit was dismissed as withdrawn with permission to file a fresh one on the same cause of action. Therefore, he has filed the present suit for possession of the said Bara. The suit was contested by the defendant on the plea that since the plaintiff did not pay the costs to the defendant before filing the present suit for possession therefore, the present suit is void ab initio. It was further alleged by the defendant that Smt. Jagiro and Bachni were never in possession of the property and they never delivered the possession to the plaintiff- respondent and, as such, they had no right to sell the property. The defendant is in possession of the property for the last more than 33 years before the filing of the suit as possession was adverse, therefore, the decree for possession could not be granted.
(3.) FROM the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff is the owner of the property in dispute as alleged ? 2. Whether the plaintiff is in possession of the property in dispute ? OPP 3. Whether the plaintiff is estopped from filing the present suit as alleged ? OPD 4. Whether the defendant has become owner of the property in dispute by adverse possession ? OPD 5. Whether the plaint is defective as alleged in the written statement ? OPD 6. Relief. 7. Whether the plaint is properly valued and stamped for purpose of court fee and jurisdiction ? OPP 8. Whether the plaintiff has been dispossessed from the property in dispute on 13.1.1975 as alleged ? OPP 8-A. Whether the suit is liable to be dismissed for the grounds mentioned in the additional plea Nos. 7 and 8? The parties were given opportunities to lead evidence in support of their case and on the conclusion of the proceedings, the trial Court vide Judgment and decree dated 12th January, 1979 dismissed the suit. Aggrieved by the judgment and decree of the trial Court, Shri Babu Ram plaintiff filed the first appeal in the Court of Additional District Judge, Ambala who allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff-respondent. Not satisfied with the judgment and decree of the first appellate court, the defendant has come in the High Court by way of regular second appeal.;