JUDGMENT & ORDER : Heard Mr. D Chakraborty, learned senior counsel assisted by Mr. H Laskar, learned counsel appearing for the appellant as well as Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. S Roy, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the CPC from the judgment dated 28.05.2015 delivered in Title Appeal No. 48/2011 by the Addl. District Judge, West Tripura, Agartala (Court No.3) partly setting aside the judgment delivered in Title Suit No. 62/2007 by the Civil Judge, Jr. Div., Court No.2, West Tripura, Agartala. 3. At the time of admitting this appeal by the order dated 08.12.2015, the following substantial question of law was framed by this Court: “Whether the original suit was not maintainable for the bar as contemplated in Order IX Rule 8 of CPC.” Liberty was granted to the appellant to raise any other substantial question of law. 4. Mr. Chakraborty, learned senior counsel at the beginning has pointed out that inadvertently the relevant provision of law has not been correctly mentioned in the substantial question of law. He asked for reframing the substantial question of law by correcting that mistake. Accordingly, the substantial question of law is re-formulated as under: “Whether the original suit was not maintainable for the bar as contemplated in Order IX Rule 9 of the CPC?” 5. That apart, the additional substantial question of law as required to be framed by this Court for purpose of determining this appeal would be as follows: “Whether the first appellate court has read the agreement of sale dated 08.12.1967 (Exbt.C) properly at the time of returning the finding as appearing in paragraph 14 of the judgment dated 28.05.2015 in Title Appeal 48/2011?” 6. A suit being Title Suit No. 62/2007 was instituted by the respondents for declaration of title, confirmation of possession of the suit land and permanent injunction. The suit land as described in the schedule pertains to Khatian No.2053 and 2050, CS Plot No. 6837, 6838, 6839, 6840 and 6841 measuring 1.15 acres of Mouja Barjala. The trial court by the judgment dated 14.07.2011 dismissed the suit holding, inter alia, that the plaintiffs are not the rightful owners of the suit land. Hence, they are not entitled to a decree of confirmation of possession. For the same reason, the prayer for permanent injunction was also dismissed. 7. The trial court by the judgment dated 14.07.2011 dismissed the suit holding, inter alia, that the plaintiffs are not the rightful owners of the suit land. Hence, they are not entitled to a decree of confirmation of possession. For the same reason, the prayer for permanent injunction was also dismissed. 7. In this regard, the trial court has referred one decision of the Gauhati High Court in Narendra Chandra Deb & Others Vs. Kamini Mohan Deb reported in AIR 1979 NOC 169 (Gauhati) where the Gauhati High Court has held: “A person can sue on the basis of his rights reflected in the record of rights, claim decree and the plaintiff in whose favour an entry is made is not required to establish by supporting evidence that the entry was correctly made. It is not at all necessary for him to adduce evidence to establish that there was foundation for making the entry and the record of rights shall be presumed to be correct until that has been rebutted”. 8. Being aggrieved by that judgment, the plaintiff-respondents, preferred an appeal being Title Appeal No. 48/2011 in the Court of the District Judge, West Tripura, Agartala. In due course of time, the said appeal was transferred to the Court of the Additional District Judge, West Tripura, Agartala (Court No.3) for disposal in accordance with law. 9. By the judgment dated 28.05.2015, which has been challenged in this appeal, the first appellate court did not interfere with the finding in respect of the part of the suit land measuring 0.93 acres which has been recorded in Khatian No. 2053 and it has been declared that the plaintiff-appellants in the said appeal, the respondents herein, have the right, title and interest over the said land and as a consequence of that finding the finding returned by the trial court is affirmed observing that over the land measuring 0.93 acres recorded in Khatian No. 2053 of the said Mouja, the plaintiff-appellants [the respondents herein] have right, title and interest inasmuch as the land measuring 0.93 acres was purchased by the defendant-appellant, by two separate sale deeds executed and registered under No. 1-10483 and 1-10484 dated 08.12.1967. The possession was also handed over to the defendant-appellant. Against that finding there is no appeal before this Court. The possession was also handed over to the defendant-appellant. Against that finding there is no appeal before this Court. The finding in respect of the part of the suit land measuring 0.22 acres has been challenged by the defendant-appellants in this appeal and the substantial question of law as recorded herein above has accordingly been framed. 10. Mr. Chakraborty, learned senior counsel appearing for the defendant-appellants has submitted that on the face of the record, the suit was not maintainable in view of the provisions of Order IX Rule 9 of the CPC inasmuch as in the plaint it has been categorically admitted that the plaintiffs filed another suit before the same court being Title Suit No. 26/1992 seeking declaration of title and confirmation of possession and for permanent injunction against the defendants. The suit was registered on 08.03.1992 and an interim injunction was also granted by that Court. The plaintiff-respondents have claimed to have not been aware that the suit was dismissed for default. Subsequently, the plaintiff-respondents when came to know about the dismissal, they filed an application under Order IX Rule 9 of the CPC being Misc.(R)47/1997 in the same court for restoration of the suit by setting aside the order of dismissal but the said application for restoration was dismissed and against that the plaintiff-respondents filed an appeal being Misc. Appeal 07/2002. The said appeal was also dismissed and, thereafter, the plaintiff-respondents did not carry any further action at law and as a result the said order of dismissal dated 06.12.2002 delivered in Misc. Appeal 07/2002 became final. 11. Order IX Rule 9, CPC reads as under: 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 satisfies 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. 12. Mr. 12. Mr. Chakraborty, learned senior counsel appearing for the appellants has submitted that the suit being Title Suit No. 62/2007 has been instituted on the same cause of action and dismissed under Rule 8, Order IX CPC. As such the subsequent suit being T. S. No. 62/2007 is totally barred by the provisions of Order IX Rule 9 of the CPC. 13. In this regard, Mr. KN Bhattcharjee, learned senior counsel appearing for the plaintiff-respondents has submitted that no such issue was framed for determination of the suit and this question has been raised for the first time in the second appeal. For determination of this issue some inquiry relating to the facts is required inasmuch as, unless both the suits, former and subsequent, are on the same cause of action there cannot be any application of Order IX Rule 9 of the CPC. Mr. Bhattacharjee, learned senior counsel having referred to para 11 of the plaint has submitted that the plaintiffs have made the statement in respect of the cause of action that the cause of action first arose on 06.12.2006 when the miscellaneous appeal was filed by the plaintiffs was dismissed and lastly on 10.03.2007 when the defendant’s sinister attempt to dispossess the appellant was repelled. According to Mr. Bhattacharjee, learned senior counsel the cause of action viz, 10.03.2007 would make the subsequent suit different. 14. Having appreciated the submissions made by the learned counsel for the parties, this Court finds that both the substantial questions of law are interlinked by one issue, viz, that whether both the suits, former and subsequent, are on the same cause of action or not. 15. That apart, the further issue that whether the finding as returned by the first appellate court in para 14 of the impugned judgment can be sustained in its entirety or it requires interference from this Court. 16. On keen reading of para 8 of the plaint, where a positive and direct statement has been made by the plaintiff for purpose of declaration of title, confirmation of possession and for permanent injunction instituted the former suit being Title Suit No. 26/1992. This aspect of the matter has to be read with the fact narrated in the agreement of sale dated 08.12.1967 (Exbt.C). This document has been admitted without any objection from the plaintiff-respondents following the process under Section 67 of the Evidence Act. 17. This aspect of the matter has to be read with the fact narrated in the agreement of sale dated 08.12.1967 (Exbt.C). This document has been admitted without any objection from the plaintiff-respondents following the process under Section 67 of the Evidence Act. 17. In the said agreement to sale, between the predecessor of the plaintiffs and the defendants, the following has been recited: “At present I intend to purchase land elsewhere for my dwelling house and for that purpose I have proposed to sell the below scheduled land measuring 1.15 acre and the first party purchasers have agreed to purchase the said land at or for the price of Rs.4,850/-. Accordingly, after demarcation of the said land in the field, I have transferred the possession of the said land to you [first party purchaser] meaning the defendants. Today on receipt of the entire consideration money for the below scheduled land from you and at the time of preparation of sale deed at the sub-registry office, Agartala it is found that khatian number of the below scheduled land was correctly written in the khatian but my name was written in the khatian erroneously, Paresh Chandra Chowdhury, thereafter, we jointly enquired the matter in the Survey and Settlement Department and after discussion it was agreed that I shall take step for the correction of my name in the record of rights, thereafter, I shall made registered instrument in favour of you for the land measuring 0.22 acre.” (Translation as provided by the appellant). 18. Therefore, the possession over the land measuring 0.22 acres recorded in the Khatian No. 2050 (Exbt.2) was definitely with the defendants. The plaintiffs have maintained a well-observed silence over that issue but at the instance of the defendants, this document [the agreement] has been produced in the Court and no oral evidence can dislodge or dilute its content. As such, the plaintiff being the successor of Paresh Chandra Biswas cannot take a different stand as in the agreement to sale it has been clearly observed that the legal heirs of Paresh Chandra Biswas, the predecessor of the plaintiff-respondents shall be bound by the said agreement. 19. The question that has been raised by Mr. As such, the plaintiff being the successor of Paresh Chandra Biswas cannot take a different stand as in the agreement to sale it has been clearly observed that the legal heirs of Paresh Chandra Biswas, the predecessor of the plaintiff-respondents shall be bound by the said agreement. 19. The question that has been raised by Mr. KN Bhattacharjee, learned senior counsel in respect of the same cause of action, this Court does not have any hesitation to hold that the cause of action on 10.03.2007 is imaginary one, inasmuch as either this Court has to believe the agreement to sale which has been duly executed and its recital, or to go by the pleading in the plaint. There cannot be any justified ground to go by the pleaded story that on 10.03.2007 the defendants made a venture to oust the plaintiff-respondents from the suit land inasmuch as they were in the possession. It has been established by the concurrent finding of fact that the defendants are in possession of a tract of land measuring 0.93 acres. That land is a part of the land shown as the suit land measuring 1.15 acres. 20. Now the controversy melts down to the remainder of the land, meaning 0.22 acres out of the total suit land measuring 1.15 acres. It has been clearly established from the agreement [Exhibit C] that the defendants were in possession over that land measuring 0.22 acres. Even though in the Khatian, the said land still stands in the name of one Paresh Chandra Chowdhury, which according to the predecessor of the plaintiff, is a wrong entry as his name has been wrongly recorded as Paresh Chandra Chowdhury in lieu of Paresh Chandra Biswas. Thus, this Court finds substantive force in the submission of Mr. D Chakraborty, learned senior counsel and accordingly, it is held that the suit was not maintainable in terms of Order IX Rule 9 of the CPC. It is to be noted that the dismissal order dated 19.06.1995 was passed for absence of the plaintiffs when the defendants appeared and did not admit the claim. 21. In addition thereto, the finding of the first appellate court in para 14 of the impugned judgment has emanated wholly from the misreading of the Exhibit C document along with the two sale deeds as mentioned above. 21. In addition thereto, the finding of the first appellate court in para 14 of the impugned judgment has emanated wholly from the misreading of the Exhibit C document along with the two sale deeds as mentioned above. Else, the first appellate court would have arrived at a finding that the entire suit land is under possession of the defendant-appellants and as such any consequential relief viz. the permanent injunction cannot be granted against the defendant-appellants. However, some intervention would be required in respect of the finding of the trial court as the trial court has observed that on the entire suit land measuring 1.15 acres the defendant-appellants have their title. 22. The title of the defendant-appellants is confined truly to a tract of land measuring 0.93 acres but the defendant-appellants are in possession of the remainder of the land measuring 0.22 acres on payment of the entire consideration money. But, unless the title is transferred in accordance with law, their status would remain as the possessor (their coming to possession is a part-performance) by virtue of the agreement dated 08.12.1967 (Exbt.C). 23. The defendant-appellants have performed their part in terms of this agreement and as such their possession cannot be held unlawful, but this Court is constrained to interfere with the finding of the trial court that the defendant-appellants have title over the land measuring 0.22 acres which is recorded in the Khatian No. 2050 of Mouja Barjala. 24. Having observed thus and clarified accordingly, this appeal stands allowed to the extent as indicated above. 25. Draw the decree accordingly and after preparation of the decree send down the records.