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2018 DIGILAW 761 (GAU)

MD ANDALIB ISLAM v. MD ABDUL SAMED @ KALIA BEPARI

2018-05-08

SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. A. Choudhury, learned counsel for the appellants. I have also heard Mr. S.K. Ghosh, learned counsel representing the respondent. 2. This Second Appeal was admitted to be heard on the following substantial question of law :- "Whether the findings of both the courts below that the suit of the present appellant is hit under the principles of res judicata?" 3. The plaintiffs' case, in brief, is that the suit patta containing six dags including Dag Nos.1688 and 1687 belonged to their predecessor-in-interest i.e. Md. Nurul Islam. During the lifetime of Nurul Islam, he had sold various areas of the land belonging to him to different purchasers including the principal defendant whereafter, he had retained 6 Lechas of land which has been inherited by the plaintiffs. According to the plaintiffs, the defendant No.1 had purchased land measuring 6 Lechas falling in dag No.1688. It has been alleged in the plaint that the defendant No.1 had forcibly tried to dispossess the plaintiffs from the plot of land measuring 6 Lechas covered by dag No.1687 of Periodic Patta No.661 and with the help of some anti-social elements they had entered into the suit land on 18.07.2008 thereby denying the right, title and interest of the plaintiffs over the land, which had prompted the plaintiffs to institute the instant suit seeking declaration of their title over the suit land, for confirmation of possession, for partition and also to issue precept and for a decree of permanent injunction. 4. The defendant No.1 had contested the suit by raising the usual objections regarding maintainability of the suit including the plea that the suit is not maintainable for want of cause of action, for non-joinder of necessary parties and also on account of being barred by the principles of res judicata. According to the defendant No.1, the suit land is his purchased land, which was the subject matter of Title Suit No. 173/1993 earlier instituted by defendant No.1 against the plaintiffs. Title Suit No. 173/1993 was decreed on contest by the court of Munsiff, Nagaon granting a decree declaring his title over the land and for recovery of khas possession by demolishing the construction standing over the suit land. Since the decree had attained finality, the same was put into execution in Title Execution Case No. 10/1994. Title Suit No. 173/1993 was decreed on contest by the court of Munsiff, Nagaon granting a decree declaring his title over the land and for recovery of khas possession by demolishing the construction standing over the suit land. Since the decree had attained finality, the same was put into execution in Title Execution Case No. 10/1994. The decree passed in Title Suit No. 173/1993 was executed and the possession of the land was handed over to the defendant No.1. Such being the position, the instant suit, according to the contesting defendant, was hit by the principles of res judicata and hence, was liable to be dismissed on such count alone. 5. Based on the pleadings of the parties, the learned court below had framed as many as six issues which are as follows :- "1. Is there any cause of action for the suit? 2. Is the suit maintainable? 3. Is the suit barred by principle of resjudicata? 4. Whether the suit is barred by law of limitation? 5. Whether plaintiff has right, title, interest over the suit land? 6. Whether plaintiff is entitled to any relief as prayed for in the plaint?" 6. After considering the evidence available on record, the learned trial Court had held that there was no cause of action for filing the suit and that the suit was hit by the principle of res judicata. Accordingly, the suit filed by the appellants/plaintiffs was dismissed. On an appeal being preferred by the plaintiffs being numbered and registered as Title Appeal No. 20/2013 the Court of learned Additional District Judge No.1, Nagaon, Assam, had passed judgment and order dated 31.03.2017 dismissing the appeal thereby affirming the judgment and decree passed by the trial court. Aggrieved thereby, the present appeal has been filed by the plaintiffs. 7. Advancing his arguments Mr. A. Choudhury, learned counsel for the appellants has fairly submitted that save and except assailing the findings of the courts below as regards Issue No.3 there is no other point involved in this appeal. By referring to the pleadings contained in the plaint, Mr. Aggrieved thereby, the present appeal has been filed by the plaintiffs. 7. Advancing his arguments Mr. A. Choudhury, learned counsel for the appellants has fairly submitted that save and except assailing the findings of the courts below as regards Issue No.3 there is no other point involved in this appeal. By referring to the pleadings contained in the plaint, Mr. Choudhury has made an attempt to convince this Court that the suit land in the present suit was different from the land involved in Title Suit No. 173/1993 in as much as the periodic patta covering the land involved in the earlier suit was PP No.1301 whereas in the instant suit the land described in the schedule of the plaint is covered by PP No.661. Placing heavy reliance on the testimony of PW 1, Mr. Choudhury submits that the aforesaid factual position stands established from the evidence available on record which was ignored by both the courts below. As such, the judgment and decree passed by the lower appellate court is vitiated by perversity warranting interference by this Court. 8. Mr. S.K. Ghosh, learned counsel for the respondent, on the other hand, contends that both the courts below have recorded concurrent findings of fact based on proper analysis of the materials available on record which establishes beyond doubt that the suit land involved in the earlier proceeding by and between the same parties in the form of Title Suit No. 173/1993 is one and the same as the one involved in the present proceeding. In support of his above argument, Mr. Ghosh contends that although originally all the dags were covered by PP No.661, yet, after the purchase of the land by the defendant No.1 the same was partitioned whereafter, a new PP No.1301 was issued. Hence, the difference in the periodic patta number, which, according to Mr. Ghosh, would have no material bearing in the context of the present case. 9. Mr. Ghosh has also referred to the testimony of PW 2 i.e. the plaintiff No.3, who has practically supported the case of the defendant by admitting that the suit land is one and the same as the land involved in Title Suit No. 173/1993. It has also been contended by Mr. 9. Mr. Ghosh has also referred to the testimony of PW 2 i.e. the plaintiff No.3, who has practically supported the case of the defendant by admitting that the suit land is one and the same as the land involved in Title Suit No. 173/1993. It has also been contended by Mr. Ghosh that after the defendant No.1 was put in possession of the suit land in execution of the decree passed in Title Suit No. 173/1993 he was once again dispossessed by the plaintiffs as a result of which a separate suit under section 6 of the Specific Relief Act had to be instituted by the defendant No.1 against the plaintiffs which was decreed by the learned trial court. According to Mr. Ghosh, the substantial question of law urged by the appellants does not arise for consideration by this Court in the present appeal. 10. I have considered the submissions advanced by the learned counsel for the parties and have also meticulously gone through the materials available on record. 11. From a scrutiny of the decree passed in Title Suit No. 173/1993, the plaint filed in Title Suit No. 45/2008 as well as the judgment and order passed by both the courts below, I find that the suit land was purchased by the defendant No.1 from the predecessor-in-interest of the plaintiffs and the said plot of land, which was originally covered by dag No.1687 of PP No.661, is the subject matter of dispute in the present proceeding as well. It is no doubt correct that there is a change in the Patta No. as compared to the schedule of the plaint filed in Title Suit No. 173/1993 with that of the present case. However, as noted above, the change in the patta number from PP No.661 to PP No.1301 has been properly explained by the defendant No.1 and the matter has also been taken cognizance by the court below. Moreover, the testimony of PW 2 confirms the fact that it is the same plot of land which was involved in the earlier round of litigation between both the parties. It further appears that the decree passed in Title Suit No. 173/1993 was earlier amended on an application filed by the decree holder therein so as to substitute dag No.1688 with 1687 pertaining to PP No.661 and accordingly the decree was prepared. It further appears that the decree passed in Title Suit No. 173/1993 was earlier amended on an application filed by the decree holder therein so as to substitute dag No.1688 with 1687 pertaining to PP No.661 and accordingly the decree was prepared. If that be so, this Court does not find any reasonable ground to disturb the concurrent finding of fact recorded by the both the courts below in respect of issue No.3. In other words, the present appears to be a clear case where the plaintiffs have made an attempt to raise a dispute in respect of the same plot of land pertaining to which a decree had been issued in favour of the defendant No.1 by the civil court which had earlier been executed by handing over possession of the land to the decree holder/defendant. In such view of the matter, the question of permitting the plaintiffs to re-agitate the same issue by filing a subsequent suit cannot arise in the eye of law. 12. For the reasons stated herein above, I am of the view that there is no merit in this appeal and the same is accordingly dismissed. The substantial question of law stands answered in favour of the respondent. 13. There would be no order as to cost. 14. Office to send back the LCR.