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2014 DIGILAW 196 (MP)

Rameshwar v. Bhagwan Singh

2014-02-12

M.K.MUDGAL

body2014
ORDER 1. The appellant/plaintiff has filed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 17.9.2012 passed by the Court of IV ADJ, Morena in Civil Appeal No.9A of 2011, confirming the judgment and decree dated 29.8.2011 passed by the Court of Additional Civil Judge Class 1 Morena in Civil Suit No.4A of 2009 whereby, the suit filed by the plaintiff for declaration of title and recovery of possession in respect of the disputed land was dismissed. In this appeal, the appellant is referred to as “plaintiff” and the respondents No.1 to 4 as “defendants’. 2. The admitted facts of the case are that the disputed land is in possession of the defendants No.1 to 3 and one Rewati Bai executed a registered sale deed dated 30.5.1984 in respect of Survey No.1024 area 5 Bigha and 14 Biswa (hereinafter would be referred to as “disputed land”) in favour of defendant No.4 Dashrath. 3. The facts in brief of the plaint are that the land bearing Survey No.1024 area 5 Bigha 14 Biswa, 1041/1 area 4 Bigha 13 Biswa, 1047 area 4 Bigha 7 Biswa, 1048 area 5 Biswa situated at Village Mirdhan District Morena and after settlement, new Survey Numbers are 1030, 963, 1023, 958 and 959. Out this total land, one Mahila Rewati was owner of ½ share and rest of the land was of the ownership of father of the plaintiff Balmukund and father of defendants No.1 and 2 and husband of defendant No.3 and recorded in their names. The said Mahila Rewati executed a registered sale deed 28.6.1972 in favour of the plaintiff of her share and handed over the possession of the same to him and since then, the plaintiff has been cultivating it. But thereafter, the defendants No.1 to 4 started obstructing the plaintiff, hence, the plaintiff inquired the matter about his mutation from the revenue Patwari showing him the sale deed dated 28.6.1972 but the plaintiff came to know that the defendants had illegally got the disputed land mutated in their name. Hence, the plaintiff filed a suit No.11A of 2004 in which, written statement was filed. Hence, the plaintiff filed a suit No.11A of 2004 in which, written statement was filed. In that suit, the defendants assured the plaintiff that they would not interfere in future in possession of the plaintiff, therefore, the plaintiff did not appear in the suit and hence, it was dismissed on 7.12.2006 in his absence. But again the defendants started interfering in possession of the plaintiff of the disputed land, hence, the plaintiff filed a suit against the defendant No.1 to 4 for the relief stated herein above. 4. The defendant No.1 to 4 by filing joint written statement denied the plaint averments except the admitted facts, stating that the alleged sale deed dated 28.6.1972 was a forged document and it was never executed by Mahila Rewati Bai in favour of the plaintiff and he was not in possession of the same. Mahila Rewati Bai and other coowners Balmukund and Jagannath performed an oral partition of the land and on the basis of said, Mahila Rewati Bai executed a sale deed dated 30.6.1984 of the disputed land in favour of defendant No.4 Dashrath and handed over him the possession. Even the land in dispute has been mutated in his name. It was further pleaded that the plaintiff was having knowledge of the said transaction in favour of defendant Dashrath, hence, he could not dare to get the land mutated in his name on the basis of forged sale deed in his favour and did not appear in the suit filed by himself. Therefore, the present suit filed by the plaintiff being based on the wrong facts is not maintainable and liable to be dismissed. 5. After framing of the four issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff against the defendants as stated above. 6. Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal before the first appellate Court which was also dismissed. Hence, thissecond appeal has been filed as stated herein above. 7. Heard learned counsel for the parties and perused the record. 8. The learned counsel for the appellant submits that both the learned Courts below have not properly considered the evidence produced by the plaintiff, owing to which the judgments passed by them deserves to the set aside. 9. Hence, thissecond appeal has been filed as stated herein above. 7. Heard learned counsel for the parties and perused the record. 8. The learned counsel for the appellant submits that both the learned Courts below have not properly considered the evidence produced by the plaintiff, owing to which the judgments passed by them deserves to the set aside. 9. The counsel for the respondents submits that both the learned Courts having considered the evidence on record, have held that the sale deed dated 28.6.1972 executed by Rewati in favour of the plaintiff was not found genuine document owing to which, the plaintiff did not get any right and title to the disputed property on the basis of the aforesaid sale deed. The counsel further argued that the suit filed by the appellant/plaintiff is not maintainable as the earlier Civil Suit No.11A of 2004 was filed by the plaintiff before the Court of Civil Judge Class II Morena for the same relief and the same property. The said suit was dismissed for want of prosecution at the stage of evidence. The earlier suit was not restored. Consequently, this subsequent suit for the same cause of action was not maintainable under Order 9 rule 9 of CPC. Hence, the appeal filed by appellant/plaintiff deserves to be dismissed. 10. Heard the arguments and perused the record. Indisputably, in para 5 and 6 of the plaint the plaintiff has pleaded that the Civil Suit No.11A of 2004 was filed by him for declaration of title and permanent injunction in respect of the disputed property against the respondents/defendants. The said suit was dismissed at the stage of evidence. Though the plaintiff has tried to justify the dismissal of the suit on the ground that the respondents had assured him of settling the dispute, yet it was not acted upon by the defendants. The said pleadings do not affect the maintainability of the suit as it has been provided under Order 9 rule 9 of CPC that if a suit is dismissed after appearance of the defendants in the absence of the plaintiff, the subsequent suit for the same cause of action to the same subject matter shall be precluded. The said pleadings do not affect the maintainability of the suit as it has been provided under Order 9 rule 9 of CPC that if a suit is dismissed after appearance of the defendants in the absence of the plaintiff, the subsequent suit for the same cause of action to the same subject matter shall be precluded. The said provision reads as under : “R.9 Decree against plaintiff by default bars fresh suit- (1) where, a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit”. 11. Considering the aforesaid provision, it is concluded that the suit filed by the appellant/plaintiff was not maintainable. Consequently, he is not entitled to get any relief in this suit. Eventually, both the learned Courts have not committed any error in dismissing the suit. Therefore, in view of the concurrent findings of both the Courts below and having no substantial question of law for admission in this appeal, it is concluded that the appeal being meritless deserves to be dismissed. 12. Thus, the appeal being merit less and devoid of substance, is hereby dismissed. 13. No order as to the costs. Let the decree be drawn up accordingly.