BAIRAGI CH DAS Vs. KARTIK CHANDRA DAS

JUDGEMENT

(1.) This revision is directed against an order passed by the Munsif, Bhadrak, rejecting the prayer of the petitioner to decide the question of res judicata as a preliminary issue under Order 14, Rule 2 of the Civil P. C.

(2.) Brief facts leading to the application are: Opposite Party No. 1 filed a suit for partition on the basis of his purchase under sale deed dated 16-1-70 from defendant No. 2. Defendant No. 4 mainly contested the suit claiming to have purchased the entire two decimals under sale deed dated 15-4-68, According to the said defendant, Gura (defendant No. 2) was not the daughter of Hadi Das and Jema as alleged by the plaintiff and sister of Makari, his vendor, His specific case was that Gura was the daughter of one Rama Das and had no connection with the family of Hadi Das. So, the purchase of the plaintiff was from an imposter. It was further alleged that in a previous suit filed by one Minki which was being contested by Gura, an issue was raised as to whether Gura wag the daughter of Hadi Das or Earn Das and it was decided by this Court that Gura was not the daughter of Hadi Das. He averred that the said finding in the earlier suit operated as res judicata and in view of the said finding, by the purchase the plaintiff did not acquire any title.

(3.) Having regard to the pleadings, an issue was struck as follows: "Is the suit barred by the law of res judicata?" When the case was taken up for hearing, defendant No. 4 filed an application under Order 14, Rule 2, C.P.C. for deciding the question of res judicata as a preliminary issue before trial of other issues. The plaintiff and defendant No. 2 filed objections stating that neither he nor defendant No. 2 being parties to Original Suit No. 46 of 1970 culminating in Second Appeal No. 149 of 1976, they were not bound by any finding and moreover, they pleaded that title in the property was claimed by Gura not as the daughter of Hadi; but as daughter of Jema, and niece of Malli, who were the recorded owners. According to them, it did not matter if it was found that Gura was not the daughter of Hadi Das. They, however, contended that the issue did neither relate to jurisdiction of the court nor to a bar to the suit created by any law for the time being in force. They further urged that the decision of the issue would not finally dispose of the suit and it would be necessary to decide the other issues. The learned Munsif rejected the prayer of defendant No, 4. Hence this revi-sion,