MOHD. IBRAHIM KHAN Vs. RUPENDRA DHAL AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff against the appellate judgment of the second Additional Subordinate Judge, Cuttack, reversing the judgment of, the Munsif of Kendrapara, and dismissing the Plaintiff's suit for declaration of title and recovery of possession. The suit property as mentioned in the plaint consisted of two schedules namely 'Ka' and 'Kha'. So far as schedule Kha was concerned the parties concerned compromised and the Plaintiff's title was admitted. The lower appellate court should not have dismissed the Plaintiff's suit in its entirety even on its own finding.

(2.) THE present controversy is limited to the properties described in Schedule Ka only. Here the contest is only between the Plaintiff and Defendant No. 6. The other Defendants excluding Defendant No. 8 compromised with the Plaintiff and did not contest before the lower courts.

(3.) THE lower appellate court has gone against the well known rule of res judicata. Defendant No. 6 was a party to that litigation. He ought to have objected to the maintainability of that suit in the Court of the Munsif. Again at the time of the execution proceeding also he should have entered appearance and, objected and raised a dispute about the decree being null and void by starting a proceeding under Section 47, Code of Civil Procedure. The Defendant (judgment debtor) who was a party to a previous litigation is bound by the principle of res judicata and cannot be permitted to say in a subsequent litigation that the previous decree is nun and void. It must therefore be held that Defendant No. 6's title to the property was extinguished by the previous litigation which resulted in actual delivery of possession to the Zamindar, viz., the Raja of Aul.