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2015 DIGILAW 1386 (GAU)

Anil Mazumdar v. Md. Nur Haque Ali

2015-11-05

SUMAN SHYAM

body2015
JUDGMENT : 1. Heard Mr. N. N. Upadhaya, learned counsel for the petitioner. None appears for the respondents despite service of notice. 2. This revision petition has been preferred against the order dated 28.09.2012 passed by the learned Munsiff No.2, Kamrup at Guwahati in Misc. Case No.228/2012 arising out of Title Suit No.421/2011 thereby dismissing the suit filed by the petitioner/plaintiff holding the same to be barred by res judicata as per the provision of section 11 of the CPC. 3. The petitioner as plaintiff had instituted Title Suit No.421/2011 before the Court of learned Munsiff No.2, Kamrup at Guwahati, inter alia praying for a decree for declaration of possessory right and for recovery of khas possession in respect of the land described in Schedule-B to the plaint measuring about 1 bigha covered by dag No.300 of village Botiamari, mouza – Samaria in the district of Kamrup, Assam. The defendants appeared in the said suit whereafter the defendant No.1 had filed Misc.(J) Case No.228/2012 raising an objection under Section 11 of the CPC contending that the petitioner/plaintiff had earlier filed another suit before the Court of learned Civil Judge (Junior Division) No.1, Guwahati numbered and registered as Title Suit No.139/2005 involving the same plot of land by and between the same parties and the aforementioned Title Suit ended in dismissal by the judgment and order dated 12.11.2007. Since no appeal had been preferred against the judgment and order dated 12.11.2007, hence the same has attained finality. In such view of the matter, the defendant No.1 contended that the subsequent suit filed by the plaintiff was barred law of res judicata. 4. The plaintiff had filed objection in the said Misc. Case denying that the subject matter and issues in both the suits are same. As a matter of fact, the plaintiff had contended that in the earlier suit the suit land was a plot of land covered by dag No.132 whereas in the instant case it is a different plot of land covered by dag No.300. That apart, the prayer of the plaintiff in the former suit was one for declaration of right, title and interest in respect of the land involved in the suit proceeding whereas in the present case the plaintiff has sought for declaration of possessory right in respect of a different plot of land which is admittedly a piece of Government land. That apart, the prayer of the plaintiff in the former suit was one for declaration of right, title and interest in respect of the land involved in the suit proceeding whereas in the present case the plaintiff has sought for declaration of possessory right in respect of a different plot of land which is admittedly a piece of Government land. As such, the plaintiff had submitted that the subsequent suit is not barred by the principles of res judicata. 5. Upon hearing the learned counsels for the parties the learned trial Court has held that the suit filed by the plaintiff was barred by res judicata and accordingly the same was dismissed by the impugned order dated 28.09.2012. 6. Mr. Upadhaya, learned counsel for the petitioner, submits that the records would reveal that the subject matter of both the suits is separate. In the instant suit the trial court was yet to frame issues and therefore, there was no basis for the Court below to presume that the issues involved in the former suit directly and substantially is an issue in the subsequent suit by and between the same party involving the same subject matter. 7. I have considered the submissions made by learned counsel for the petitioner and have also perused the records. The question as to whether a suit is barred by the principles of res judicata or not is a mixed question of law and fact which has to be decided by the trial Court at the stage of trial. In the instant case the trial of the suit was yet to commence. The written statement filed by the defendants was also apparently not taken on record. Under such circumstances, the learned trial Court was not right in law in dismissing the suit holding the same to be barred by res judicata on the basis of objection raised in a Misc. Case filed by the defendants. That apart, the impugned order dated 28.09.2012 also does not record any finding of fact to the effect that the suit land involved in the former suit was one and the same involved in the subsequent suit. The said position assumes significance in view of the categorical stand of the plaintiff that the land involved in both the proceedings is not one and the same. 8. The said position assumes significance in view of the categorical stand of the plaintiff that the land involved in both the proceedings is not one and the same. 8. In view of the discussions made in the foregoing paragraphs, I am of the considered opinion that the learned trial Court had committed manifest illegality in passing the order dated 28.09.2012 dismissing the suit on a preliminary point without framing an issue on the point of res judicata or trying the same on the basis of materials available on record. This is a clear case where the learned trial court had exceeded its jurisdiction in passing the impugned order dismissing the suit. Such being the position, this revision petition must succeed and is hereby allowed. The impugned order dated 28.09.2012 is hereby set aside. Consequently, the Title Suit No.421/2011 would stand readmitted in the Court of Munsiff No.2, Kamrup at Guwahati. The learned trial Court would now proceed with the trial of the suit from the stage at which it was closed by the order dated 28.09.2012 and decide the suit on merit as per the provisions of the CPC. With the above directions this revision petition stands disposed of.