JITENDRA NATH SARCAR Vs. BISWANATH BAGCHI

JUDGEMENT

(1.) This appeal is by the defendants in a suit brought by the plaintiffs for a declaration that as reversioners they have title to the land in suit and for the setting aside of an alienation made by the last limited owner Katyani Devi in favour of her daughter Sita-labala and for the setting aside of the transfer by Sitala Bala to the other defendant Jitendra Nath Sarkar. The plaintiffs' suit has been decreed by both the Courts below and the defendants have appealed.

(2.) The defence taken was that the transfer by the last limited owner was for legal necessity and therefore conveyed the entire interest to Sitalabala. The next defence was that Sita-labala's transfer to the defendant Jitendra Nath Sarkar was for valid consideration and therefore unassailable. A further point taken was that the question of legal necessity could not be reagitated in this suit inasmuch as that question had been raised and finally decided in a former suit in which the present parties were also parties; in other words, the plea of res judicata was taken. The Courts below held that this plea could not be maintained inasmuch as the former suit was a mere rent suit and the question of legal necessity was decided only incidentally. Thereafter both the Courts entered into the question of legal necessity and found that there was none and on this ground they have decreed the plaintiffs', suit.

(3.) As stated before the defendants have appealed and two main questions were raised. First, it was contended that there was no legal necessity' and that the Courts really had not come to a definite conclusion that there was legal necessity. Secondly, it was contended that the Courts below were wrong in going, into the question of legal necessity as the entertainment of: that question was barred as being res judicata.