NEMAI SAMANTA Vs. MAHADEV DAS

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure directed against the order number 34 dated February 6, 1987 passed by the Munsif, 2nd Court, Serampore in Title Suit No. 334 of 1984.

(2.) The Petitioner in this revisional application instituted a suit for eviction of the opposite party, Defendants from the suit premises which was numbered as Title Suit No. 334 of 1984. The opposite party, Defendants, inter alia, disputed the relationship of landlord and tenant in that suit. Issues were framed and issue number 8 is on the point of the relationship of landlord and tenant between the parties. The opposite party, Defendant filed a prayer before the trial Court for deciding that issue first. But the Petitioner -Plaintiff raised objection on the ground that in the past predecessor of the opposite party, Defendants brought a suit against the Petitioner and his predecessor being Title Suit No. 235 of 1981 for specific performance of contract alternatively for declaration of title in respect of the disputed property by adverse possession. On the other hand, the Petitioner -Plaintiff instituted a suit against the opposite party, Defendants and their predecessors being suit No. 205 of 1982 for their eviction from the suit property. Both the suits were heard analogously and there it was decided that the plea of adverse possession taken by the predecessors of the opposite party -Defendants could not be established and the alternative case of specific performance of contract was also rejected by the Court. The Court found the predecessors of the opposite party -Defendants as the tenants under the predecessor of the present Petitioner. On the other hand, the suit filed by the predecessor of the present Petitioner i.e. suit No. 205 of 1982 was ultimately dismissed on merit on the ground of non -joinder of necessary parties. So, in the above facts and circumstances, the present Petitioner raised objection before the trial Court against the hearing of issue number 8 involved in the present ejectment suit on the plea of res judicata. But the learned trial Court rejected that plea on the ground that the parties are not the same.

(3.) On being aggrieved by such' order the present revisional application has been filed challenging that decision of the learned trial Court.