DINESH MEHTA,J. - (1.) The present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant laying challenge to the judgment and order dated 30.11.2016 passed by the learned Additional District Judge, Shahpura, District Bhilwara (hereinafter referred to as the 'Appellate Court') in Appeal No. 66/2009 filed by the appellant against the judgment and decree dated 15.05.2009 passed by the learned Senior Civil Judge, Shahpura, District Bhilwara (hereinafter referred to as the 'Trial Court')
(2.) Succinctly stated, the facts of the present case are that the appellant-plaintiff filed a suit (No. 60/2005) for recovery of possession of the property, which he had purchased vide registered sale deed dated 15.04.1993 and mandatory injunction against the defendants. The said suit filed by the plaintiff came to be dismissed by the learned Trial Court, vide its judgment and decree dated 15.05.2009, inter alia, observing that an earlier suit, being Suit No. 73/1994, filed by the plaintiff for grant of mandatory and permanent injunction of the disputed property had already been rejected by the learned Trial Court for which, as subsequent suit for the relief of possession was barred, as per the provisions contained in Order 2, Rule 2 of the Code of Civil Procedure. Feeling aggrieved by the said judgment and decree dated 15.05.2009, the appellant preferred an appeal which was registered, as Appeal No. 66/2009 and came to be dismissed by the learned Appellate Court, vide its judgment and decree dated 30.11.2016. While rejecting appellant's appeal and affirming the rejection of plaint under Order 7, Rule 11 vide order dated 15.05.2009 passed by the Trial Court, the learned Appellate Court has found the subsequent suit to be barred by the principles of acquiescence and estoppel read with the provisions contained under Order 2, Rule 2 of the Code of Civil Procedure.
(3.) Mr. Gopal Acharya, learned counsel for the appellant, contended that the principles of Order 2, Rule 2 of the Code of Civil Procedure were not applicable in the present factual backdrop and the subsequent suit for possession filed by the appellant was not barred by law, as the subject-matter of the suit and relief claimed was entirely different. Advancing his arguments further, he submitted that the earlier suit, being Suit No. 73/1994 was filed by the appellant for seeking mandatory injunction, which had been rejected by the Trial Court holding, that the plaintiff did not have possession of the house property, in absence whereof, mandatory and permanent injunction could not be granted. Mr. Acharya further added that the subsequent suit filed by the appellant was for claiming possession and permanent injunction, hence the provisions contained under Order 2, Rule 2 of the Code of Civil Procedure would not apply.;