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2011 DIGILAW 676 (JHR)

Kabulan v. Jahura Oraon

2011-07-14

PRASHANT KUMAR

body2011
JUDGMENT Prashant Kumar, J. 1. This writ application is directed against the order dated 14.06.2007 passed by Sub-Judge-II, Ranchi in Title Suit No. 129 of 2004, whereby the learned court below rejected the prayer of Petitioner to decide the issue of res-judicata as a preliminary issue. 2. From perusal of impugned order, I find that the court below rejected the prayer of Petitioners and hold that the issue of res- judicata in the context of this case is a mix question of law and fact, thus, unless evidences adduced by the parties, same cannot be decided at preliminary stage. 3. It is submitted by Sri Rajan Raj, learned Counsel for the Petitioners that Plaintiff Nos. 1 & 2 (Respondent Nos. 1 & 2 of this writ application) are the family members of Defendant Nos. 3 to 9 (Respondent Nos. 4 to 10 of this writ application). It is further submitted that Defendant No. 3 to 9 had filed S.A.R. Case No. 35/1969 | 127/1970 for the same suit property. It is submitted that aforesaid S.A.R. case allowed in favour of Defendant Nos. 3 to 9 upto the appellate court. However, against the order of appellate authority original Petitioner No. 1 filed a writ application bearing C.W.J.C. No. 113 of 1987 (R), which was allowed by this Court vide Annexure 2. 4. Against the aforesaid order, Defendant Nos. 3 to 9 filed L.P.A. No. 60 of 1994, which was dismissed as the same was time barred. It then appears that a review application vide Civil Review No. 80 of 1997 filed for reviewing the order passed in L.P.A. No. 60 of 1994, which was also dismissed. It is further submitted that Plaintiff Nos. 1 and 2 (Respondent Nos. 1 and 2), who are family members of Defendant Nos. 3 to 9, filed a restoration case bearing S.A.R. Case No. 11 of 1986-87, which was dismissed as not maintainable. Thereafter, Plaintiffs filed S.A.R. Appeal No. 25 of 1987, but the proceeding of the said S.A.R. Appeal was stayed vide order dated 17.02.1989, because writ was pending in this Court. It is submitted that thereafter the present title suit filed in the year 2004, which is barred by principles of res-judicata, because some of the family members had filed S.A.R. case under Section 71A of the Chotanagpur Tenancy Act and they loss the case upto the High Court. 5. It is submitted that thereafter the present title suit filed in the year 2004, which is barred by principles of res-judicata, because some of the family members had filed S.A.R. case under Section 71A of the Chotanagpur Tenancy Act and they loss the case upto the High Court. 5. It is further submitted that in view of Division Bench judgment of Hon'ble Patna High Court (Ranchi Bench) in the case of Smt. Satyabati Devi v. State of Bihar and Ors. reported in 1997 (1) BLJR 456 other members of same family are not entitled to file civil suit. Accordingly, it is submitted that the impugned order cannot be sustained. 6. On the other hand, Sri Shambhu Nath Sharma, appearing for Respondents-Plaintiffs submits that in the instant case relationship of Plaintiffs vis-a-vis Defendant Nos. 3 to 9 is itself an issue and unless the same is decided, the decision cited by learned Counsel for the Petitioners has no application. It is further submitted that the subject matter of dispute in the earlier case, is not the subject matter of dispute in present suit, nor the Plaintiffs are party in the earlier case, under the said circumstance, principles of res-judicata has no application in this case. 7. Having heard the submissions, I have gone through the record of the case. Plaint annexed in this case as Annexure 1. At Paragraph No. 4, Plaintiffs stated that they are descendants of Shivraj Oraon. Plaintiffs had also given genealogical table in the plaint. Though, written statement not annexed with this writ application, but it was produced by learned Counsels for the parties for my perusal. At Paragraph No. 9 of the written statement, Petitioners, who are Defendants in the court below, had categorically stated that "Allegations made in the paragraph Nos. 3 and 4 of the plaint is absolutely false and the same is denied. It is false to allege that the Plaintiffs belong to the branch of Shivraj Oraon." Thus, relationship of the Plaintiffs with Respondent Nos. 3 to 9 is itself in dispute, therefore, same is required to be decided by the court below by framing a separate issue. 8. Under the said circumstance, unless it is prove that the Plaintiffs(Respondent Nos. 1 & 2) are the relatives of Defendant Nos. 3 to 9, ratio of the judgment of Smt. Satyabati Devi v. State of Bihar and Ors. 8. Under the said circumstance, unless it is prove that the Plaintiffs(Respondent Nos. 1 & 2) are the relatives of Defendant Nos. 3 to 9, ratio of the judgment of Smt. Satyabati Devi v. State of Bihar and Ors. (Supra) cannot be applied in this case. 9. In view of the discussions made above, I find that learned court below rightly concluded that in the instant case, question of res-judicata cannot be decided as a preliminary issue, because it is amix question of fact and law. I find that in the instant case, for accepting the plea of Petitioners, it is necessary for the Petitioners to prove that Plaintiffs are relatives of Defendant Nos. 3 to 9 and it is also necessary for the Petitioners to prove that the suit property is same, which was involved in the earlier case, likewise Petitioner is also required to prove that cause of action of both cases are same. Thus, in this case question of res-judicata cannot be decided as a preliminary issue. 10. Under the said circumstance, I find no error in the order of the court below. Thus, this writ application is dismissed. However, parties shall bear their own cost. Application dismissed.