1. Raj kumar filed a suit against Devi Dass and others before the learned sub Judge, Jammu, for declaration to the effect that decree passed by the court of sub Judge on 13.12.1984 in Civil Suit No. 177 of 1978 be declared null and void and un-executable against the plaintiff. The plaintiff contended that he was a tenant of one Sh. Abdul Raouf in one room and some land since 1962. The premises were sold by Sh. Abdul Raouf to one Ishar Dass who is defendant No.2. The sale was effected through a sale deed registered on 16.3.1965. The plaintiff contended that he continue to occupy the premises when Ishar Dass, defendant No2.asked him to execute a rent deed and a rent note was executed in 1966.67. Subsequently, Ishar Dass sold the premises in four share to four different persons. One part was sold to Sh. Dev Raj, Second to Krishan Lal, third part to Devi Dass and fourth portion to Devi Dayal. The defendant No.2, Ishar Dass in the year 1978. sold the portion under the tenancy of the plaintiff to one Shashi Kant, who has been made defendant No.4 in the suit, vide sale deed registered on 23.5.1978. The defendant No. 4, Sashi Kant sold his portion to the plaintiff vide sale deed executed on 1-7-1981. The plaintiff has further contended that after purchase of premises he constructed four rooms, Varanda bath room and latrin and kept open compound over the premises, after demolishing the khacha structure. The plaintiff further contended that he is residing in the house alongwith his family. He also contended that adjoining land and kaccha room, towards the west of the plaintiff is owned by defendant No1 but in which he is not residing. He received a warrant of execution of a decree and he came to Know that decree had been passed with respect to the property. This decree was obtained by defendant No1 against defendant 2 and 3 on the basis of suit for premption filed by defendant No 1 against defendants No 2 and 3. The suit had been decreed ex-parte and the present plaintiff was not a party to said suit.

2.He averred that the decree has been procured by fraud and mis-representation and the decree had been passed on two grounds that the property was contiguous to the property of defendant No1 and also a parnala of the house of the defendant No1 opens towards the property of the plaintiff in that suit. The plaintiff contended that right of prior purchase on the basis of vicinity and contiguity under clause six of section 15 of the J&K right of prior purchase Act has been declared un-constitutional by the Supreme Court, therefore, the decree was bad on that count also. The suit which is Pending from between the parties at present, was resisted by defendants on various grounds and the trial court framed following issues on 2.9.1987 :-

(i). Whether the suit in the present form is not maintainable, as the plea taken by plaintiff in the suit can be raised in the execution proceedings and not by a suit ? O.P.D-1.

(ii). Whether any transaction between plaintiff and defendant 2 to 4 during pendancy of the suit of prior purchase, filed by defendant No1 is null and void ? O.P.D-1

(iii). Whether the Judgment and decree dated 13.12.84. in Civil Suit No 177/78 by this court is null and void as same has been procured by practising fraud, misrepresentation and convince of defendant No.2 and 3 with defendant No.1? O.P.P

(iv). Relief, to what relief plaintiff is entitled to O.P. Parties.

3. Issues No.1 was decided against defendant No1 and issue No.2 was decided in favour of the defendant No.1. The plaintiff has field this revision petition against the finding of the court below on issue No.2 whereas Sh. Devi Dass, defendant No. 1 has filed the revision, challenging the whole order of the learned trial court, therefore, both these revision petitions are taken up together.

4. The first issue was whether the suit was maintainable and it has been contended by the learned counsel that the suit was not maintainable in view of Rule 101 of order 21 C.P.C.

5. Rule 101 oford

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