Bar to Suit--Suit against dispossession--First suit was for restraining peaceful possession--Second suit filed was for possession on basis of title--Both the suits are based entirely on different and distinct cause of action--Suit not barred.

The present appeal has been preferred against the judgment and decree dated 14.12.2015 passed by the learned District Judge, Mewat whereby the appeal filed by defendant No.1-appellant against the judgment and decree dated 14.8.2015 passed by the learned Civil Judge (Junior Division), Mewat, has been dismissed.

2. Plaintiff-respondents No.1 and 2 filed the suit seeking decree of possession against the appellant and proforma respondent No.3 for directing them to hand over the vacant possession of the residential house comprised of Rectangle No.10, Killa no.8/2/3(0-3) situated in Village Chundhika, Tehsil Tauru, Distt. Mewat. In the consequential relief, the plaintiffs have also sought the decree of permanent injunction restraining the defendants from raising further construction in the disputed house.

3. As per the case of plaintiff-respondents No.1 and 2, they are owners of the suit property. The defendants were their close relatives being their maternal uncles. They were allowed to reside in the house in dispute as a licensee. With the passage of time, the defendants became dishonest and intended to grab the residential house of the plaintiffs. That plaintiffs earlier filed a suit for permanent injunction against the defendants but vide judgment and decree dated 12.11.2011, the said civil suit was dismissed. They preferred an appeal. The said appeal was partly allowed by the learned Additional District Judge, Nuh vide judgment and decree dated 17.5.2014 declaring the plaintiffs to be the owners of the suit property. It has further pleaded that the suit property is required by the plaintiffs for their residence. Due to that reason, they served the notice dated 11.6.2012 terminating the licence of defendants. The defendants were requested to surrender the vacant possession of the suit property but of no avail. Hence, the suit.

4. The appellant and proforma respondent No.3 contested the suit by raising the preliminary objections regarding maintainability, estoppel, lack of cause of action, concealment of true and material facts and the suit being barred under Order 2 Rule 2 of the Code of Civil Procedure 1908 (for short 'CPC') because in earlier Civil Suit No.802/2008/2011, the plaintiffs never alleged that the defendants were licensees and different facts were pleaded in that suit. It is further pleaded that defendant No.1-appellant is in exclusive possession of the suit property. He has got constructed the pucca residential house in the year 1995. Defendant No.1-appellant and his father had been coming in open possession over the suit property for the last more than 40 years. Their possession is open, hostile, continuous for the last 40 years and as such defendant No.1-appellant has acquired the title over the suit property by way of adverse possession. With these pleas, the appellant pleaded for dismissal of the suit.

5. From the pleading of the parties, the following issues were framed by the learned trial Court:

“1. Whether the plaintiffs are owner of the suit property? OPP

2. If issue No.1 is proved, whether plaintiffs are entitled to a decree of possession on the grounds as alleged? OPP

3. If issue No.1 and 2 are proved, whether the plaintiffs are entitled to a decree of permanent injunction restraining the defendant from raising construction over the suit property? OPP

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiffs are estopped by their own act and conduct? OPD

6. Relief.”

6. On appreciating the evidence on record and contentions raised by the learned counsel for the parties, the learned trial Court decreed the suit of plaintiffrespondents No.1 and 2 and a decree of possession was passed against the defendants. They were directed to put the plaintiffs in vacant possession of the suit property within three months from the date of decree. The defendants were also restrained from raising any further construction in the suit property.

7. Defendant No.1-appellant aggrieved with the aforesaid judgme