[2023/RJJD/017858]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Misc. Appeal No. 853/2023

Soni Devi W/o Late Shri Jawtaram, Aged About 85 Years,

Resident Of Village Pal, Tehsil Luni, District Jodhpur.

----Appellant

Versus

Khinya Ram S/o Late Shri Jawtaram, Resident Of Village Pal,

Teshil Luni, District Jodhpur.

----Respondent

For Appellant(s)

:

Mr. Sajjan Singh Rajpurohit

Mr. Manish Bhunwal

For Respondent(s)

:

Mr. Ajay Vyas

Mr. Jatin Sankhala

HON'BLE MS. JUSTICE REKHA BORANA

Order

29/05/2023

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

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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

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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