The limited scope of interference under supervisory jurisdiction and the maintainability of a suit involving different property from a previous litigation.

JUDGMENT :

Vishal Mishra, J.

1. With the consent of the parties, the matter is heard through video conferencing.

2. In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this application has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsels through video conferencing, following the norms of social distancing/physical distancing in letter and spirit.

3. The present petition is being filed challenging the order dated 25.11.2019 passed by the First Appellate Court, whereby, the Misc. appeal filed by the petitioner against the order dated 16.11.2018 by the trial Court has been confirmed.

4. It is alleged that the respondents have filed a suit for declaration and permanent injunction in respect of the property situated in Patwari Halka No. 60 part of Survey No. 2173 Rakwa 0.052 Hectare out of which 0.022 Hectare is purchased property by way of a sale deed by the respondents No. 1 and 2 where they are having right over the property in question. An application under Order 39 Rule 1 and 2 of CPC was also filed along with the civil suit. It is submitted that the sale deed dated 22.10.2013 filed along with the civil suit to demonstrate their ownership. It is argued that on earlier occasion one Amzad Khan and Saleem Khan have filed a civil suit before the trial Court which was registered as Civil Suit No. 24-A/2006 with respect to the property of Survey No. 2173 Rakwa 0.052 Hectare part against the present petitioner. The Civil Suit was decided on merits and dismissed the suit by the judgment and decree dated 31.08.2007 (Annexure P/7). The appeal against the same was also dismissed vide order dated 05.07.2008 (Annexure P/8). It is argued that the civil suit has been filed concealing the aforesaid facts and as per the settled legal preposition that once the parities have already filed an earlier litigation with respect to the same property, second civil suit is not maintainable. It is submitted that the mutation in favour of the respondents have been cancelled, challenging the same, the respondents have filed an appeal before the Collector, wherein some documents were filed under Order 41 Rule 27 of CPC. By challenging the order dated 25.11.2019 and 16.11.2018, the present petition has been filed against the orders passed by the Courts' below.

5. The present petition has been filed on two grounds that the seller Saleem Khan was having no right over the property as the earlier suit filed by him with respect to the same property has been dismissed and the case has attained finality. It is a settled legal preposition that once the seller is having no right over the property, the subsequent purchaser does not get any right over the property in question. The aforesaid facts are not disputed in the litigation. The aforesaid aspect has not been considered by both the Courts' below. It is submitted that the respondents want to encroach over the property in question of the petitioner on basis of forged sale deed and the same is not permissible in the eyes of law. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of U.P. and others Vs. Ram Sukhi Devi reported in 2005(9) SCC 733 and in the case of Sewaram Vs. Union of India, reported in 1997 (1) M.P.W.N. 240.

6. Per contra, counsel for the respondents has opposed the petition and has contended that earlier civil suit was with respect to the part of the land having area of 0.010 hectare out of which the civil suit was only filed with respect to the toilet which is clearly reflected in the order sheets of the trial Court as well as the First Appellate Court. The second civil suit was filed by the respondents on a different land which was not the part of the previous litigation. The aforesaid findings given by the trial Court has duly affirmed by the appellate Cour