KUNJABEHARI SAHU Vs. SATYABADI SAHU AND ORS.

JUDGEMENT

(1.) THIS appeal has been filed by the Plaintiff against the judgment and decree of the learned Second Additional Subordinate Judge, Cuttack affirming the judgment and decree of the learned Munsif, Banki. Respondents 1 to 5 are the Defendants, Respondents 6, 7 and 8 are the legal representatives of proforma Defendant No. 6 and Respondent No. 9 is proforma Defendant No. 7.

(2.) THE Plaintiffs case is briefly noted. Defendants 1 to 5 as Plaintiffs had filed Title Suit No. 195 of 1958 in the Court of the First Munsif, Cut tack. In that suit the present Plaintiff was Defendant No. 1 and deceased Defendant No. 6 and Defendant No. 7 were Defendants 2 and 3. The prayer in that suit was for declaration of title, confirmation of possession, in the alternative, recovery of possession and for permanent injunction to restrain the Defendants in that suit, from disturbing the possession of the Plaintiffs and from withdrawing the amount held in deposit in Misc. Case No. 51 of 1958 The said Title Suit No. 195 of 1958 was dismissed by the learned Munsif. The present Defendants 1 to 5 preferred Title Appeal No. 151 of 1960 against the dismissal of their suit. The Title Appeal was dismissed and the judgment and decree of the trial court were confirmed. Thereafter present Defendants 1 to 5 preferred Second Appeal No. 302 of 1963 in this Court. By judgment dated 30 -7 -1964 the appeal was allowed and the suit was decreed in favour of the Plaintiffs (present Defendants 1 to 5) as against Defendants 2 and 3 (deceased proforma Defendant No. 6 and proforma Defendant No. 7) ex -parte and Defendant No. 1 (present Plaintiff) on contest. It is asserted by the present Plaintiff that notices in Second Appeal No. 302 of 1963 had not been served upon him, but were fraudulently suppressed and a false report of service of notice was given to the effect that the Plaintiff had refused to accept the notice and that service had been effected, by affixture on 14 -10 -1963. As the Plaintiff was not in the village on 14 -10 -1963, no notice could possibly be served upon him on that date. On 13 -8 -1964 for the first time the Plaintiff came to know about the result of the Second Appeal. Thereafter the Plaintiff filed M.J.C. No. 51 of 1964 in this Court to set aside the judgment and decree passed in tile Second Appeal, but by order dated 2 -4 -1965 the M.J.C. No. 51 of 1964 was dismissed. In these circumstances, the Plaintiff had filed the present suit for a declaration that he was not bound by the decision in Second Appeal No. 302 of 1963 and that the decision in Title Appeal No. 151 of 1960 was binding on the parties and for recovery of possession of the suit land through Court.

(3.) THE main findings of the learned trial court are that the present suit is barred by res judicata as the same plea of suppression of notice had been agitated in M.J.C. No. 51 of 1964 which was dismissed by this Court that the suit is barred by the law of limitation, that the Plaintiff ordinarily resides at village Kalapathara that the Plaintiff had failed to prove the allegation of fraud and non -service of summons in Second Appeal No. 302 of 1963 and that in the said Second Appeal notice had been duly served on the Plaintiff. The Plaintiffs suit was accordingly dismissed. In appeal, the learned lower appellate court set aside the finding of the Munsif on the point of limitation and held that the suit had been filed within time. However, he confirmed the other findings of the learned Munsif noted above and dismissed the appeal filed by the Plaintiff.