Judgment 1. Heard Ms. P. Bhattacharya, learned counsel for the appellant. Also heard Mr. G.N. Sahewalla, learned Sr. counsel assisted by Ms. B. Sarma, learned counsel appearing on behalf of the respondent. 2. The present appeal has been filed against the judgment and decree dated 21-06-2005 passed by the learned lower Appellate Court in Title Appeal No. 08/2003 thereby reversing the judgment and decree dated 30-01-2003 passed by the learned Trial Court decreeing the suit of the appellant/ plaintiff in Title Suit No. 39/1999. 3. This second appeal was admitted by this Court by framing the following substantial questions of law: “Whether the suit being Title Suit No. 39/99 filed by the plaintiff appellant is barred by constructive res-judicata in view of dismissal of Title Suit No. 84 of 1988 for default.” 4. The case of the appellant/ plaintiff in brief is that the plaintiff is the owner-in-possession of a plot of land measuring 1B-1K covered by Dag No. 14 and 16 of P.P. No. 46 of Nawbaisa gaon under Gakhirkhowa Mauza in the district of Jorhat, which plot of land has been described in the schedule-‘A’ to the plaint. In the year 1984 the plaintiff had constructed an R.C.C. house over the said plot of land which plot is also well demarcated by bamboo fencing erected around the land. The defendant has his dwelling house adjacent to the western boundary of the plaintiff and taking advantage of the fact that the plaintiff has to stay away from his home in connection with his service, the said defendant had in the year 1988 broken the western boundary and encroached upon a stretch of land owned by the plaintiff, as a result of which the plaintiff was compelled to institute Title Suit No. 84/1988. Eventually a compromise was reached by and between the parties, as a result of which the defendant had vacated the said land and accordingly the Title Suit No. 84/1988 was not pursued by the plaintiff thereby leading to dismissal of the suit for default. Again on 23-06-1999 the defendant had illegally broken the western boundary bamboo fencing of the plaintiff’s land and started digging plinth and drain thereby encroaching a stretch of land measuring more or less 2 lechas in the western part of the schedule-‘A’ land, the breath of which is 5 ft. Again on 23-06-1999 the defendant had illegally broken the western boundary bamboo fencing of the plaintiff’s land and started digging plinth and drain thereby encroaching a stretch of land measuring more or less 2 lechas in the western part of the schedule-‘A’ land, the breath of which is 5 ft. and length about 60 ft., which is the suit land described in schedule-‘B’ to the plaint. On account of such illegal encroachment of his land by the defendant, the plaintiff had been compelled to institute the aforementioned title suit for declaration of title and recovery of possession of schedule- B’ land as well as for permanent injunction. 5. The defendant appeared in the suit and contested the same by filing written statement, inter alia, questioning the maintainability of the suit by taking the formal pleas. The defendant had taken the plea that Title Suit No. 84/1988 was by and between the same parties in respect of the same subject matter which was eventually dismissed and as such the plaintiff’s suit was barred by principle of res-judicata. The defendant had also pleaded that he had constructed a building on his own land adjacent to the plaintiff’s land about 30 years ago and had also erected pucca boundary wall on his western boundary demarcating his land from that of the plaintiff. The defendant had also denied of having encroached the land of the plaintiff as has been alleged in the plaint and on such basis prayed for dismissal of the suit. 6. Based on the pleadings of the parties the learned Trial Court had framed the following issues: 1. Whether there is a cause of action for this suit? 2. Whether the suit is maintainable? 3. Whether the suit is hit by the principles of res-judicata? 4. Whether there is a western boundary bamboo fencing or pucca wall covering the suit land? 5. Whether the defendant illegally encroached upon the suit land and started construction thereon? 6. Whether the suit land belongs to the plaintiff? 7. Whether the plaintiff is entitled to get a decree as prayed for? 7. During the course of trial, both the parties have adduced evidence in support of their respective cases. On appraisal of the evidence available on record and also after hearing the parties the Trial Court had decreed the suit filed by the plaintiff by granting all the reliefs. 8. 7. During the course of trial, both the parties have adduced evidence in support of their respective cases. On appraisal of the evidence available on record and also after hearing the parties the Trial Court had decreed the suit filed by the plaintiff by granting all the reliefs. 8. Being aggrieved by the judgment and decree passed by the Trial Court the defendant as appellant had preferred Title Appeal No. 08/2003 in the court of learned Civil Judge (Sr. Div.), Jorhat. After hearing the parties the learned lower Appellate Court had allowed the appeal by the judgment and decree dated 21-06-2005 thereby holding that the plaintiff’s suit was barred under Order IX Rule 9 CPC. Being aggrieved by the judgment and decree dated 21-06-2005 passed in Title Appeal No. 08/2003 the plaintiff has preferred the instant second appeal. 9. Ms. P. Bhattacharya, learned counsel for the appellant submits that although the substantial question of law that has been framed by this Court pertains to the bar of res-judicata within the meaning of Section 11 CPC yet since both the courts have concurrently held that the suit is not barred by the principle of res-judicata, the aforesaid substantial question of law does not arise for consideration by this Court. Drawing the attention of this Court to the findings recorded by the lower Appellate Court holding the plaintiff’s suit to be barred under Order IX Rule 9 CPC, Ms. Bhattacharya submits that since the subsequent suit was instituted on the basis of a cause of action that arose on 23-06-1999, hence, Order IX Rule 9 CPC would not have any application in the facts and circumstances of the present case since Title Suit No. 84/1988 which was dismissed for default was instituted on a separate cause of action. Ms. Bhattacharya, therefore, seeks leave of the Court to urge an additional substantial question of law as to whether the judgment and decree passed by the lower Appellate Court is in contravention of the requirement of Order IX Rule 9 CPC since the court below has not recorded any finding to the effect that both the suits had been instituted on the same cause of action. 10. Mr. G.N. Sahewalla, learned Sr. 10. Mr. G.N. Sahewalla, learned Sr. counsel appearing for the respondent submits that he has no objection if the Court permits the appellant to urge the aforesaid additional substantial question of law, but goes on to submit that even if it is held that the suit was not barred by principle of res-judicata, yet, the plaintiff has not been able to meet the bar constituted under Order IX Rule 9 CPC by leading evidence so as to prove and establish the fact that there was separate cause of action for institution of Title Suit No. 39/1999. In such view of the matter the substantial question of law sought to be urged by the appellant does not arise for consideration in the present second appeal. 11. I have considered the rival submission made by and on behalf of the parties and have also perused the record. On perusal of the judgment and order passed by the learned lower Appellate Court it appears that the Appellate Court below has dismissed the suit filed by the plaintiff on the sole ground that the same was barred by Order IX Rule 9 CPC. The observation made by the learned lower Appellate Court in that regard is quoted herein below for ready reference: “9. From the Ext. Ka it is apparent that earlier suit for the same subject matter and for the same relief i.e. for declaration of right, title and recovery of possession as well as injunction was dismissed for default U/o 9 rule I C.P.C. Order 9 rule I C.P.C. lays down that where a suit is wholly or partly dismissed under rule 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. In view of order 9 Rule I C.P.C. the suit in the present case by the plaintiff is not maintainable in as much as the earlier suit for the same subject and cause of action was dismissed under order 9 Rule 8 C.P.C. That being so, only the remedy before plaintiff was to apply for setting aside the order of dismissal. Thus it is apparent that the present suit filed by the respondent/ plaintiff was barred and not maintainable in view of dismissal of the earlier suit on the same subject U/o 9 Rule 8 C.P.C. In the above view of the matter decision of the Ld. Thus it is apparent that the present suit filed by the respondent/ plaintiff was barred and not maintainable in view of dismissal of the earlier suit on the same subject U/o 9 Rule 8 C.P.C. In the above view of the matter decision of the Ld. Trial court holding the suit maintainable is not tenable in law. Since the suit itself was not tenable. Ld. Trial court ought to have dismissed the suit in as much as the same was not maintainable in view of order 9 Rule 9 C.P.C.” 12. It is the admitted position of fact that the Title Suit No. 84/1988 was by and between the same parties pertaining to the same plot of land and that the said suit was eventually dismissed for default under Order IX Rule 8 CPC. It is also admitted fact that the plaintiff had not preferred any application under Order IX Rule 9 CPC for setting aside the dismissal of the previous suit. 13. Order IX Rule 9 CPC reads as follows: 9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 14. A bare reading of the aforesaid provision goes to show that where a suit is wholly or partly dismissed under Rule 8 of the Order IX the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. In the present case the subsequent suit is by and in between the same parties pertaining to the same suit property as in the previous suit. In the present case the subsequent suit is by and in between the same parties pertaining to the same suit property as in the previous suit. However, there is no finding recorded by the court below based on proper evidence on record that the cause of action for both the suits is one and the same notwithstanding the pleaded stand of the plaintiff that the cause of action for the subsequent suit arose on 23-06-1999 i.e. after dismissal of the former suit. In the absence of any categorical finding negating such plea on facts, the learned lower Appellate Court could not have held the suit filed by the plaintiff to be barred under Order IX Rule 9 CPC. 15. That apart, there is neither any objection raised by the defendant questioning the maintainability of the suit under Order IX Rule 9 CPC nor has any issue been framed in that regard. The question as to whether the subsequent suit is barred under Order IX Rule 9 CPC on the ground of the same having been instituted on the same cause of action is a mixed question of fact as well as law which has to be decided by the court below on the basis of evidence led by both the parties in support of the issues framed therein. As has been indicated hereinbefore, neither any objection has been raised by the defendant on such ground nor has any issue been framed by the Trial Court on applicability of Order IX Rule 9 CPC in the facts of the present case. It appears that the learned lower Appellate Court went on a presumption that the subsequent suit was filed on the same cause of action. If there was no cause of action arising on 23-06-1999 then the suit would be liable to be dismissed for want of cause of action. In such view of the matter, the judgment and decree passed by the learned lower Appellate Court is untenable in the eye of law and the same is hereby set aside. 16. As has been indicated hereinbefore the learned lower Appellate Court had reversed the decree passed by the Trail Court on the sole ground of suit being barred under Order IX Rule 9 CPC without discussing any of the issues on merit, except issue No. 3 which relates to question of res-judicata. 16. As has been indicated hereinbefore the learned lower Appellate Court had reversed the decree passed by the Trail Court on the sole ground of suit being barred under Order IX Rule 9 CPC without discussing any of the issues on merit, except issue No. 3 which relates to question of res-judicata. The finding recorded by the lower Appellate Court on the said issue is also apparently in favour of the plaintiff. Since it is the settled law that first appeal is a valuable right of the parties whereby question of fact is required to be looked into by the Appellate Court and issues are required to be decided on reappraisal of the evidence available on record, I am of the considered opinion that present is the fit case where the appeal itself deserves to be remanded for fresh decision by the lower Appellate Court on merit by deciding the issues on the basis of the evidence available on record. The parties would now appear before the lower Appellate Court on 16-11-2015. The lower Appellate Court would decide the appeal without being influenced by any observation made by this Court in the present order. It is also made clear that parties would be at liberty to raise all such objection as may be permissible under the law in support of their respective stand in the matter. The second appeal is allowed to the extent indicated hereinabove. However, there would be no order as to cost. Registry may transmit the case record as expeditiously as possible.