ORDER :

1. The present appeal has been preferred against the order dated 19.04.2023 passed by the Additional District Judge No.5, Jodhpur Metro, Jodhpur whereby the second stay application under Order 39 Rules 1 & 2, CPC preferred by the plaintiff has been rejected.

2. The brief facts of the case are that a suit for cancellation of the release deed was preferred by plaintiff-Soni Devi being mother of the defendants. It was averred in the plaint that the release deed was got executed by her sons fraudulently in the garb of gift deeds to be executed in favour of her daughters. Along with the suit, an application under Order 39 Rules 1 & 2, CPC was preferred at the initial stage which was rejected on the ground that there are no chances of possession of the plaintiff being disturbed by the defendants as defendant No.2-Khinya Ram had himself filed a written statement in favour of the plaintiff admitting the factum of the release deed being executed fraudulently in the garb of the gift deed.

3. After the said stay petition being rejected on 06.11.2017, the second stay petition has been preferred in the year 2023 with an averment that defendant No.2-Khinya Ram, who had specifically supported the case of the plaintiff, is now proceeding on to sell out the plots on the land in question and therefore, he be restrained from doing so.

4. The second stay petition as preferred by the plaintiff has been rejected by the Court below on the ground that no new fact has been averred by the plaintiff to have come into existence after decision of the first stay petition on 06.11.2017. The Court below concluded that the order dated 06.11.2017 was passed after taking into consideration the complete facts and therefore, without any new fact being averred by the plaintiff, the second stay petition, on the same facts and grounds, could not be held to be tenable.

5. Learned counsel for the appellant submitted that the said finding by the Court below is totally contrary to the material available on record as defendant No.2-Khinya Ram had at the initial stage, supported the case of the plaintiff but now, after decision of the first stay petition, he is proceeding on to sell out the plots on the land in question and therefore, a new cause of action arose. Hence, the second stay petition was totally on new grounds and a new cause of action and the Court ought to have entertained the same.

6. Per contra, learned counsel for the respondent, while supporting the order passed by the Court below, submitted that besides the grounds on which the second stay application has been rejected by the Court below, the plaintiff does not have a case on merits as well. The first stay application preferred by the plaintiff had been rejected basically on the ground that in the proceedings initiated by the daughters in the year 2010 before the Revenue Court, a compromise/settlement was entered into between the parties whereby it was decided that the plaintiff/mother-Soni Devi would execute gift deeds in favour of her daughters for a land measuring one bigha each and a release deed in favour of her sons/defendants for the rest of the land. On basis of the said compromise, an application was preferred before the Revenue Court for withdrawal of the suit and the suit was thereby withdrawn unconditionally on 23.09.2010. It was only in pursuance to the said compromise that the release deed was executed by the plaintiff.

7. Learned counsel for the respondent also submitted that even otherwise, the proceedings for preparation of the outlay and sale of plots does not pertain to 2 bigha 10 biswas of the land released in his favour by his mother. All the said proceedings are being undertaken by him qua the land measuring 6 bighas 11 bisw