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2004 DIGILAW 1262 (PAT)

Jagdish Sah v. Kushma Devi

2004-12-20

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Learned counsel for the petitioner submits that O.P. No. 14 Thakur Prasad died on 6.12.2004 and his heirs are already on record as O.P. Nos. 1,15 and 16 and hence he prays that the name of O.P. No. 14 be expunged. The learned counsel for the opposite parties does not object. Hence, the prayer of the learned counsel for the petitioner is allowed and the name of O.P. No. 14 is directed to be expunged. 2. Heard learned counsel for the parties, in admission matter. The petitioner is a defendant in Title Suit No. 66/1999 which was filed by O.P. No. 1 for declaration of title and confirmation of possession over the suit land and also for permanent injunction etc. 3. The petitioner is aggrieved by order dated 30.9.2003 passed in the aforesaid suit by-which the learned Sub-Judge-lll, Begusarai, rejected his petition which was for deciding the preliminary issue that the suit was barred by the principle of res judicata. 4. The learned counsel for the petitioner submits that the relief claimed in the present suit was issue No. 8 in Title Suit No. 36/1982 and the subject matter of both the suits was common. Hence, he submits that the principle of res judicata was clearly applicable to the instant suit and hence the learned Court below should have dismissed this suit on the basis of the said preliminary issue. 5. The learned counsel for the opposite parties vehemently opposes the said contention of the learned counsel for the petitioner and submits that neither the plaintiff O.P No. 1 was a party to the earlier suit nor the points involved were common in both the suits, as the previous suit was merely for specific performance of contract whereas the present suit was for declaration of title and confirmation of possession etc. Hence, he submits that the learned Court below was quite justified in rejecting the petition of the defendant-petitioner as neither the principle of res judicata was applicable nor there was any occasion for the Court to go into the matter at this stage. 6. Hence, he submits that the learned Court below was quite justified in rejecting the petition of the defendant-petitioner as neither the principle of res judicata was applicable nor there was any occasion for the Court to go into the matter at this stage. 6. Having heard the learned counsel for the parties and after perusing the material on record, it is quite apparent that the issue of res judicata specially in this case, involves mixed question of law and facts and it should not have been gone into without consideration of the evidence of the parties. 7. In the aforesaid circumstances, I set aside the impugned order of the learned Court below and direct it to decide the question of res judicata at the time of final hearing of the suit alongwith other issues. It may be pointed out that neither this order nor the impugned order shall prejudice the case of any of the parties. 8. With the aforesaid directions, this civil revision is allowed.