Laxminarain v. Kanhaiya Lal and Ors. in regard thereto is pending consideration before the Addit

Babu Lal son of Late Shri Kanhaiya lal Ganpat Lal son of Late Shri Kanhaiyalal Pramod Chaudhary son of Late Shri Kannhaiyalal Jagmohan Chaudhary son of Late Shri kanhaiya Lal Smt. Durga Devi W/o Shri Ganesh Ram D/o Kanhaiya Lal Smt. Rama Devi W/o Rameshwar D/o Kanhaiya Lal Smt. Manbhar Devi W/o Ramuji D/o Kanhaiya Lal Residents of Jagannathhpura, Tehsil& Dist. Jaipur. ----Appellants Versus

1. Laxminarain son of Mojiram, resident of Jagannathpura, Tehsil & District Jaipur (Since deceased through his legal representatives) 1/1. Roopennder @Ramu S/o Laxminarain 1/2. Yogendra S/o Laxminarain 1/3. Mahendra S/o laxinarain 1/4. Swaroop @ Sarwan S/o Laxminarain 1/5. Kailash S/o Laxminarain All residents Jagannathhpura, Tehhsil and District Jaipur. [2025:RJ-JP:11644] (2 of 5) [CFA-83/1999] ----Respondents For Appellant(s) : Ms. Jyoti Swami, Adv. For Respondent(s) : Mr. Lokesh Tiwari, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA 12/03/2025 Order This civil first appeal has been filed by the appellants- plaintiffs (for short ‘the plaintiffs’) against the judgment and decree dated 20.01.1999 passed by the Additional District Judge No.4, Jaipur City, Jaipur (for short ‘the trial Court’) in Civil Suit No. 101/97, whereby the trial Court dismissed the original plaintiff- Kanhaiya Lal’s suit for declaration and permanent injunction. Brief facts of the case are that the original plaintiff-Kanhaiya Lal filed a suit for declaration and permanent injunction against the respondent No.1-defendant (for short ‘the defendant’) to the effect that the land shown in the map annexed with the plaint marked as A, E, F, G, H, I, J, K was purchased by the original plaintiff from the Panchayat including the property marked as A, L, M, N in the map and plaintiffs also sought permanent injunction to the effect that the defendant be restrained to encroach upon the said land marked as A, L, M, N, not to take any action in connection with the execution proceedings pursuant to the decree dated 06.11.1982 passed in Civil Suit No.684/80 by A.M.J.M. No.4, Jaipur City, Jaipur and not to cause any interference in the use and plaintiff’s possession over the land in question which was purchased by him from Gram Panchayat, Heerapura in the year

1963. [2025:RJ-JP:11644] (3 of 5) [CFA-83/1999] The defendant filed a written statement and denied the averments and stated that in relation to the aforesaid suit property a decree has been passed in favour of the defendants from the court concerned and execution petition titled as “Laxminarain Vs. Kanhaiya Lal and Ors. in regard thereto is pending consideration before the Additional District Judge (Junior Division) No.4, Jaipur City, Jaipur. It was further submitted that cause of action had accrued to the plaintiff in the year 1976 when the defendant filed a suit titled as “Laxminarain Vs. Kanhaiya Lal and Ors.” and presently no cause of action accrued to the plaintiff. It was further submitted that suit filed by the plaintiff was time barred. It was further submitted that since rights of the parties in relation to the subject-matter of the suit property had already been adjudicated, the suit was barred by principle of res judicata. On the basis of pleadings of the parties, the trial Court framed the following issues:- 1- D;k okni= ds layXu ekufp= esa , ,y ,e ,u ls fpafgr lEifRr oknh ds LokfeRo ,oa vkf/kiR; dh gS\ 2- D;k oknh] y{ehukjk;.k cuke dUgS;k yky] flfoy okn la[;k& 684/80 esa U;k;ky; vij eqaflQ Øe&4] t;iqj uxj] t;iqj }kjk ikfjr fMØh fnukad 6&11&82 ds fu"iknu ds fo:) LFkk;h fu"ks/kkKk dh fMØh izkIr djus dk vf/kdkjh gS\ 3- D;k okn le; ifjlhek ls ckf/kr gS\ 4- D;k orZeku okn flfoy okn la[;k 684/80 U;k;ky; vij eqaflQ Øe&4] t;iqj uxj] t;iqj esa ikfjr fu.kZ; ,oa fMØh fnukad 6&11&82 ls izkM~- U;k; jslT;qfMdsVk ds vk/kkj ij ckf/kr gS\ 5- D;k oknh dks orZeku okn ds fy, okn gsrq izR;qRiUu ugha gqvk\ 6- D;k orZeku okn flfoy izfØ;k lafgrk dh /kkjk&47 ds micU/kksa ds vUrxZr ckf/kr gS\ 7- D;k iwoZ esa ikfjr fMØh fnukad 6&11&82 dks fujLr djk;s fcuk orZeku okn fu"Qy gS\ 8- vuqrks"k\ [2025:RJ-JP:11644] (4 of 5) [CFA-83/1999] Learned counsel for the plaintiff further submits that trial court vide its judgment dated 20.01.1999 decided the issue Nos.3 to 7 considering them as preliminary issues and dismissed the suit filed by the plaintiff. Learned counsel for the plaintiff also submits that trial court had committed an error in dismissing the suit filed by the plaintiff because issues of limitation as well as res judicata were to be decided after taking the evidence of the parties but trial court had not recorded the evidence of the parties and without evidence, the trial court dismissed the suit filed by the plaintiff. So, in the interest of justice, matter be remanded to the trial court to record the evidence of the parties on all the issues with a direction to the trial court to decide the suit afresh within a year. Learned counsel for the defendants has opposed the arguments advanced by learned counsel for the plaintiff and submitted that trial court rightly decided the issue Nos.3 to 7 as preliminary issues because to decide these issues, no evidence was required. So, the present appeal filed by the plaintiff being devoid of merit, is liable to be dismissed. I have considered the arguments advanced by learned counsel for the plaintiff as well as counsel for the defendants. It is an admitted position that issues regarding limitation as well as res judicata are to be decided after taking the evidence of the parties but trial court had not recorded the evidence of the parties at the time of deciding these issues. So, in my considered opinion, trial court had committed an error in dismissing the suit filed by the plaintiffs. So, the appeal filed by the plaintiff deserves to be allowed. [2025:RJ-JP:11644] (5 of 5) [CFA-83/1999] Accordingly, the appeal filed by the plaintiff is allowed. The judgment dated 20.01.1999 passed by the trial court is set aside. The trial court is directed to take evidence of both the parties on the issues and decide the plaintiff’s suit preferably within a year from the date of receipt of a certified copy of this order. Both the parties are directed to appear before the trial court on

07.04.2025. Pending application(s), if any, stand, disposed of. AVINASH GULERIA /14 (NARENDRA SINGH DHADDHA),J