RAJESH BINDAL,J - (1.) THIS order of mine shall dispose of a R.S.A. No. 2528 of 1989 and E.S.A. No. 2529 of 1989 as common issues are involved therein. The appellants/defendants are in appeal before this Court against the judgment and decree of the Courts below, whereby suit filed by the respondents No.1 to 4 for declaration to the effect that they are owners in possession of the property in dispute in their own right, was decreed and further the appellants/defendants were restrained from dispossessing the respondents/plaintiffs in any manner in execution of the decree passed by learned Sub Judge Ist Class, Nabha on May 27, 1983 in Suit No. 1184 of July 21, 1982 titled as "Karam Singh v. Jangir Kaur. At the time of hearing, learned senior counsel for the appellant sought to argue the appeal raising the following substantial questions of law :- i) Whether a fresh suit is maintainable after the earlier suit claiming the same relief was dismissed for non-prosecution ? ii) Whether a decree conferring rights on a person for the first time would require registration to confer any right on him ?
(2.) THE facts of the case in dispute have been noticed from R.S.A. No. 2528 of 1989. 72 kanals of land was owned by Jangir Kaur, mother of respondents No. 1 to 4/plaintiffs. There is nothing on record to suggest as to whether the property owned by Jangir Kaur was her self acquired property or inherited property. Out of total land, she suffered a consent decree in favour of respondents No. 1 to 4/plaintiffs for land measuring 17 bighas on October 5, 1977. There is no averment in the suit filed by the respondents No. 1 to 4/plaintiffs to the effect that there was any family settlement on the basis of which the decree was suffered by her. The decree which created rights in favour of respondents No. 1 to 4/plaintiffs was not got registered by them. The same was not given effect to even in the revenue record as mutation was not entered in favour of the respondents No.1 to 4/plaintiffs. The respondents No. 1 to 4/plaintiffs were shown in the revenue records in possession of the land only as tenants. On March 16, 1982 Jangir Kaur entered into an agreement to sell the same land, which formed part of the decree dated October 5, 1977. On her failure to execute the sale deed, the appellant filed suit for specific performance on July 21, 1982, which was decreed on May 27, 1983 and even the appeal filed against the same was also dismissed. In execution of the judgment and decree on November 17, 1983, learned Executing Court got the sale deed executed in favour of the appellant after rejecting the objections filed by Jangir Kaur and the respondents No. 1 to 4/plaintiffs. Thereafter, the present respondents No. 1 to 4/plaintiffs filed a suit for declaration and injunction on June 3, 1985 seeking declaration to the effect that they are owners of the land in dispute and the appellants/defendants be restrained from dispossessing them from the land in dispute. The claim made in the suit was on the basis of the earlier decree in their favour i.e. Dated October 5, 1977. The suit was contested by the appellants/defendants raising the plea that Jangir Kaur, mother of respondents No. 1 to 4/plaintiffs, being owner of the land in dispute entered into an agreement to sell the land in dispute to the appellant and on her failure the suit for specific performance filed by the appellant was decreed by learned trial Court on October 14, 1987 against which the appeal was also dismissed. It is further submitted that objections filed by the respondents No. 1 to 4/plaintiffs under Order 21 Rule 58 CPC in the execution filed by the appellant were dismissed on November 23, 1983 and objections under Order 21 rule 97 CPC were dismissed on February 2, 1985 by the learned Executing Court.
(3.) STILL further it is submitted that an earlier suit filed by the respondents No. 1 to 4/plaintiffs on June 3, 1985 claiming the same relief was dismissed for non-prosecution on June 18, 1985. Accordingly, the present suit filed by the respondents No. 1 to 4/plaintiffs was not maintainable being barred under Section 11CPC and Order 2 Rule 2 CPC. On the pleadings of the parties, the following issues were framed :- (i) Whether the suit is not maintainable in the present form ? OPD (ii) Whether the suit is barred u/s 11 CPC and u/o 2 R 2 CPC ? OPD (iii) Whether the plaintiffs are in exclusive possession of the suit land as owners ? OPP (iv) Whether the plaintiffs are entitled to the injunction prayed for ? OPP (v) Relief. ;