Order 2 rule 2
professional
(Querist) 29 May 2015
This query is : Resolved
A died leaving his widow and a son as his only legal heirs. A was the owner of a house the ground floor whereof was commercial and occupied by various tenants and one portion of the ground floor was in use of the son for his business. The widow and the son were residing on the upper floor. The widow filed a suit against her son claiming that upon the demise of A, under his Will she had become the absolute owner of the house; that the son was merely a licensee in a portion of the ground floor and which license came to an end on the demise of A; that the son had however failed to vacate the said portion of the ground floor. The widow sought a decree for injunction restraining the son from selling transferring or parting with possession of the portion of the ground floor in his occupation. The son after some contest gave a statement stating that he will not sell, transfer or part with possession of the said portion of the ground floor and the suit was disposed off. On the demise of the widow, her brother filed a second suit against the son claiming that the widow under her Will bequeathed the house to him and claiming possession not only of the portion of the ground floor in which the son was had been running a shop but also of the upper floor. The defendant contended that the suit was barred Order 2, rule 2 of the CPC.Is the suit barred by order 2 rule 2 ?
Dr J C Vashista
(Expert) 31 May 2015
No, it is not barred.
There is a fresh cause of action against the occupant son of widow mother who has bequeathed will leaving her property in favour of the beneficiary/claimant (uncle of occupant).
T. Kalaiselvan, Advocate
(Expert) 05 June 2015
The cause of action is new hence not barred. However the case may be properly challenged on the basis of merits.
