NABIN MAJHI Vs. TELA MAJHI

JUDGEMENT

(1.) This appeal is at the instance of the defendant and it arises out of a suit for partition. The appeal involves interpretation of the New Explanation VIII which has been added to Section 11 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976.

(2.) The plaintiffs instituted the suit claiming partition by metes and bounds of their half share in the suit property. The principal defence of the defendant was that prior to this suit he had instituted a suit against the plaintiffs, being Title Suit No. 69 of 1961, in the First Court of the Munsif at Rampurhat, for a declaration of his title to .10 acre of land appertaining to C. S. Plot No. 1183. In that suit, it was inter alia contended by the defendant that there was a previous partition. The said suit was decreed on a finding that there was an amicable partition of the suit property. It was urged by the defendant that the finding of the learned Munsiff in the said Title Suit No. 69 of 1961 would operate as res judicata in the present suit.

(3.) The learned Subordinate Judge overruled the contention of the defendant that the finding in the earlier suit operated as res judicata in the present suit, for he took the view that the Court of the Munsiff in which the earlier suit was instituted was not competent to try the present suit. He relied on a decision of the Supreme Court in Mst. Gulab Bai v. Manphool Bai, . On the merits of the case, the learned Subordinate Judge held that there was no previous partition as though the plaintiffs had a half share and the defendant had the other half, the defendant was in possession of 15 or 16 bighas of land and the plaintiffs were in possession of 7 or 8 bighas of land. The defence plea of previous partition was disbelieved by the learned Subordinate Judge. Accordingly, the learned Subordinate Judge decreed the suit in a preliminary form declaring the plaintiffs' half share in the suit property. On appeal by the defendant against the judgment and decree of the learned Subordinate Judge, the lower appellate court also took the same view and dismissed the appeal. Hence this second appeal.