The issue of maintainability cannot be decided without leading of evidence by the parties at the trial.

JUDGMENT

Raj Mohan Singh, J. - The present revision petition has been preferred by the petitioner against the order dated 13.12.2016 passed by the Civil Judge (Jr. Divn.) Sonipat, vide which application filed by the defendant/petitioner under Rule 2 CPC was dismissed.

2. Perusal of the record would show that a civil Court decree dated 21.08.1993 was passed in favour of the petitioner in a Civil Suit No.400/1993 titled 'Ram Niwas vs. Sri Chand' thereby declaring the present petitioner owner in possession of plot in Prabhu Nagar, Mandi Sonipat. Vide civil Court decree dated 10.05.1985 passed in a civil Suit No.463/85, plot measuring 43 1 /2 x 39' situated within municipal limit of Sonipat was decreed in favour of Kailash Chand son of Siri Chand in a suit titled 'Kailash Chand vs. Siri Chand'. The properties involved in the aforesaid two civil Court decrees were different properties and father of the parties gave the same to his two sons.

3. Petitioner filed Civil Suit No.327-RBT of 2012 dated 09.01.2012 for declaration and permanent injunction against the respondent challenging the sale deed dated 16.09.2011. Father of the petitioner Sri Chand died on 13.12.2011. The sale deed was set aside vide judgment and decree dated 14.12.2015. In the aforesaid suit, the defendant also alleged that the civil court decree dated 21.08.1993 was an act of fraud upon Sri Chand which was played upon the petitioner. Defendant alleged that father of the parties had not relinquished all his rights with possession in favour of Ram Niwas (petitioner) as per family settlement in the year 1991. Respondent denied that the plaintiff had obtained the judgment and decree dated 21.08.1993. In the defence set up by the present respondent in the aforesaid suit, the said decree dated 21.08.1993 was claimed to be illegal without setting up any counter claim in the said suit, nor any cross suit has been filed. In the aforesaid suit, issues No.1 and 2 were framed to the following effect:-

"1. Whether the plaintiff is entitled for the relief of declaration to the effect that the sale deed bearing no.12898 dated 16.09.2011 is illegal, null and void being based upon fraud and is not binding upon the rights of the plaintiff who became owner in possession of the said property by way of civil court decree dated 21.8.1993, as prayed for? OPP

2. If issue no.1 is proved then "Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendant from selling, alienating or creating any third party interest in the suit property and from dispossessing the plaintiff? OPP"

4. The operative part of the judgment and decree dated 14.12.2015 reads as under:-

"It is ordered that the suit of the plaintiff is hereby decreed with costs to the effect that the impugned sale deed no.12898 dated 16.9.2011 is illegal, null and void and not binding upon the rights of the plaintiff, who has become owner in possession of the suit property by way of a valid civil court decree dated 21.8.1993. The defendant is further restrained from selling or alienating in any manner in favour of a third party, the suit property and from dispossessing the plaintiff there from."

5. Evidently, sale deed No.12898 dated 16.09.2011 was declared to be illegal and not binding upon rights of the plaintiff, who had become owner in possession of the suit land by way of valid civil Court decree dated 21.08.1993. The decree dated 21.08.1993 was held to be valid in the aforesaid civil suit against which a Civil Appeal No.9 of 2016 titled 'Satish Kumar vs. Ram Niwas' is pending in the Court at Sonipat and the same is fixed for 05.03.2019 for arguments.

6. Civil Appeal No.9 of 2016 titled 'Satish Kumar vs. Ram Niwas' challenging the civil court decree dated 14.12.2015 in favour of the petitioner is also pending. In an independent civil Suit No.12 dated 03.02.2012 at the instance of the defendant challenging the civil court decree dated 21.08.1993, an application under Rule 2 CPC was filed by the p