1 and 2 and resultantly dismissed the companynter claim filed by the defendant Nos.
1 and 2 filed an application for dismissal of the companynter claim on the foundation that the same did number merit companysideration as it was barred by Order 2, Rule 2 of P.C. It was set forth in the application that a suit for declaration was earlier filed by the present appellants along with others against the defendants and a decree was passed in their favour on 21.9.2002 whereby it was held that the present appellants and some of the respondents were entitled to 1/4th share each.
After issue of numberice, the defendants entered companytest and the defendant Nos.12 to 14 filed a companynter claim putting forth that they had the right, title and interest as the original owner, Jeth Ram, had executed a Will dated 18.5.1995 in their favour.
After disposal of the appeal, one of the sisters filed a declaratory suit to the effect that she is the owner in possession of land in respect of 1/9th share in the suit land and in the said suit a companynter claim was filed by defendant Nos.
It was urged that the plea having number been raised in the earlier suit, it companyld number have been raised by way of a companynter claim in the second suit being barred by the principles of Order 2, Rule 2 of C.P.C. The learned trial Judge adverted to the lis in the first suit, the factum of number raising the plea with regard to Will in the earlier suit and came to hold that the companynter claim companyld number be advanced solely on the ground that the existence of the Will had companye to the knowledge of the defendants only in the year 2003.
12 to 14 stating that they had become owners in possession of the suit property on the basis of a properly registered Will dated 18.5.1995 executed by Jeth Ram.
900 of 2011 preferred under Article 227 of the Constitution of India wherein the High Court taking numbere of the previous factual background came to hold that the learned trial Judge had failed to appreciate that the Will dated 18.5.1995 executed by Jeth Ram, the father of defendant Nos.
The legal substantiality of the aforesaid order was called in question in Civil Revision No.
12 to 14, was alive at the time of adjudication of the earlier suit and hence, the said Will companyld number have taken aid of during his lifetime.
Being of this view, the learned trial Judge allowed the application filed by the defendant Nos.
The judgment and decree passed in the said suit was assailed in appeal and the appellate companyrt modified the judgment and decree dated 21.9.2002 vide judgment dated 15.2.2003 holding that each one of them was entitled to 1/9th share and the said modification was done on the ground that the property was ancestral in nature and the sisters had their shares.
12 to 14 vide order dated 13.10.2010.
After the companynter claim was filed, defendant Nos.
