Law:

Section:

Specific Relief Act (I of 1877)-------S. 42---Civil Procedure Code (V of 1908), O.IX, R.9---Suit for declaration--- Decree against plaintiff by default bars fresh suit---Scope---Shop situated on ground floor of disputed property was transferred to predecessor-in-interest of the defendant, while residential portion situated on ground floor as well as on first floor of disputed property stood transferred to predecessor-in-interest of the plaintiff---Subsequently plaintiff (appellant) had filed a suit for declaration to the effect that he was an owner in possession of residential part of disputed property; that the defendants (respondents) were owners only of a shop forming part of ground floor of the property, which according to the plaintiff shop measured 10' x 22' Sq. ft. , and that the chobara situated in the said property was also in ownership of the plaintiff---Trial Court decreed suit of plaintiff to the extent that chobara was property of plaintiff but held that dimensions of shop vested in the defendant were not 10' x 22' Sq. ft. as alleged by plaintiff but 25-1/2' x 21-1/2' Sq. ft. as claimed by the defendant---First Appellate Court decreed suit of plaintiff in its entirety---Revision applications filed by defendant before High Court were accepted and suit of plaintiff was dismissed in its entirety on the ground that suit was barred under Order IX, Rule 9, C.P.C. as an earlier suit was dismissed in default and never restored, where after the present suit had been filed---Validity---Predecessors-in-interest of the plaintiff were impleaded as defendants in the said earlier suit---Ex facie present plaintiff was not the successor-in-interest of the plaintiff of the said earlier suit, therefore, dismissal of said earlier suit in default could not have any consequences for the present plaintiff, who did not claim any title through the plaintiff of the earlier suit---Copy of plaint of said earlier suit was never produced in evidence during proceedings of present case nor any specific issue pertaining to suit being barred under Order IX, Rule 9, C.P.C. was ever framed---Dimensions of shop, forming part of disputed property, were identified as 10' x 22' Sq. ft.…

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