R.L.ANAND, J. - (1.)UNSUCCESSFUL plaintiff Kata Singh has filed the present regular second appeal and it has been directed against the judgment and decree dated 15.10.1979 passed by Additional District Judge, Sirsa who allowed the appeal of the defendants by setting aside the judgment and decree dated 27.4.1977 passed by Sub Judge 1st Class, Dabwali who decreed the suit of the plaintiff-appellant for possession of the land measuring 9 kanals as detailed in the heading of the plaint.
(2.)THE brief facts of the case are that Kata Singh appellant filed a suit for possession of the agricultural land measuring 9 kanals comprised in Killa No. 155, Khasra No. 24 (7-11), 25(1-9), Khewat No. 454, Khatoni No. 663 as per jamabandi for the year 1969-70 on the basis of the title or in the alternative the land measuring 9 kanals comprised in Killa No. 155/15(6- 13) and 17(2-7), situated in Dabwali, District Sirsa. There was some litigation regarding possession of the land between the parties and earlier a decree for possession was passed in favour of the plaintiff by Sub Judge in the year 1969 according to which the plaintiff was entitled to take possession of the land measuring 9 kanals, comprised in Rect. No. 155, Khasra Nos. 16 (6-13) and 17(2-7) and that decree was passed in Civil Suit No. 275. The plaintiff filed execution proceedings and in the opinion of the defendants there was some misunderstanding regarding that land regarding which the plaintiff obtained the decree in a wrongful manner. In fact, the plaintiff was entitled to the price of the land measuring 9 kanals in lieu of the old khasra number but by mistake of the consolidation department the tuck of the plaintiff was not separately demarcated and it was merged in the tuck of the defendants and the defendants did not want to part with the land comprised in Khasra Nos. 16 and 17 of Rect. No. 155. The case set up by the plaintiff further is that with the intervention of the panchayat the defendants gave an undertaking to give 9 kanals of land comprised in Khasra No. 24 (7-11) and 25(1-9) instead of Killa Nos. 16 and 17, referred to above as per compromise Ex. P1 dated 4.10.1969 which was executed between the parties. So much so, one Harbans Singh stood surety on behalf of the defendants. On the basis of said compromise the execution application which was filed by the plaintiff with the executing court was dismissed as withdrawn. In short, the case set up by the plaintiff is that as the undertaking was given by the defendants that they would give the possession of 9 kanals of land comprised in Khasra Nos. 24 and 25, but they backed out and hence the present suit.
The suit was contested by the defendants and it was pleaded that the plaintiff earlier filled an execution application for possession of land comprised in Khasra Nos. 16 and 17 and the same was withdrawn by the plaintiff as he had alleged that he had taken a wrong decree whereas he was entitled to the land comprised in Rect. No. 131 Killa No. 9. So the execution application was dismissed. It was pleaded that the plaintiff was barred from filing the present suit as he had withdrawn the execution application without the permission of the court and that the suit was barred by the principle of res judicata and the plaintiff was estopped from filing the present suit by his own act and conduct. He had waived his right and the suit of the plaintiff was not legally maintainable in the present form. With this defence the defendants prayed for the dismissal of the suit.

(3.)FROM the pleadings of the parties, the learned trial Court framed the following issues :-
"1. Whether the defendants had executed writing to the effect that they would give Killa Nos. 24, 25 of Sq. No. 155 instead of Killa Nos. 16, 17 of Sq. No. 155 ? OPP 2. If issue No. 1 is proved whether the plaintiff is entitled to recover possession of these Killa numbers from defendants ? OPP 3. If issue No. 1 is not proved whether the plaintiff is entitled to recover possession of those Killa numbers from defendants ? OPD 4. Whether the suit is within limitation ? OPP 5. Whether the plaintiff is debarred from filing the present suit by his own act and conduct ? OPD 6. Whether the plaintiff has waived his rights in respect of the suit land ? OPP 7. Whether the suit is barred because the plaintiff had withdrawn execution application without the permission of court ? OPD 8. Whether the suit is barred by the principle of res judicata as alleged in para No. 3 of the additional objections in written statement ? OPD 9. Whether the defendants have become owners by way of adverse possession ? OPD 10. Whether the suit filed is frivolous and the defendants are therefore entitled to special costs under Section 35-A of C.P.C. ? If so to what amount ? OPD 11. Relief."
The parties led oral and documentary evidence in support of their respective cases and on the conclusion of the trial the learned trial Court vide judgment and decree dated 27.4.1977 decreed the suit of the plaintiff.