KRISHNA CHANDRA NAIK Vs. NILAKANTHA MOHANTY AND ORS.

JUDGEMENT

(1.) THIS appeal is by the Defendants against the confirming judgments of the Courts below decreeing the Plaintiffs suit for declaration of title and confirmation of possession.

(2.) THE dispute relates to an area of Ac.0.040 decimals in Puri town under Khata No. 513/2045 comprising under plot measuring 0.030 - Decimals This admittedly stood recorded in the name of Mukta Bewa in the settlement of 1899 as a Sthitiban tenant under the deity Lord Jagannath and the land was the Amrutamonehi land of the said deity. Plaintiff claims ownership and possession on the basic that he is the paternal great grandson of Mukta Bewa. Defendants claim ownership and possession by oral purchase for a consideration of Rs. 50/ - from said Mukta Bewa in the year 1928. Alternatively they claim to have acquired title by way of adverse possession. The lower court found the Plaintiff to be the descendant of said Mukta Bewa in the line of succession and, therefore, held that the Plaintiff has title to the suit land. In regard to the adverse possession of the Appellants the lower court held, there was no sufficient evidence to such adverse possession. But the findings of the lower Court were upheld by the lower appellate court. Two substantial questions of law were raised by Shri A.K. Mishra, learned Counsel for the Appellants -defendants. Firstly, the disputed land being the subject -matter in the earlier suit No. O.S.201 of 1967 and the finding in that suit being that the present Defendants were in possession of the disputed land as occupancy tenants, and further, Plaintiff herein having laid no claim over this property of Mukta Bewa, the entire claim in the present suit is barred by the principle of res judicata; and secondly, in the absence of finding that the Plaintiff was in possession of the disputed land, it was an error on the part of the courts below in decreeing the Plaintiff suit. Shri A.K. Sahu, learned Counsel for the Respondent -plaintiff controverting the above submissions of Shri Mishra, submitted that the earlier suit by Plaintiff Balaram Das having been dismissed, the present Plaintiff who was Defendant No. 4 in that suit could not have challenged the findings and, therefore, question of res judicata would not arise.

(3.) SO far as the point raised with regard to res judicata is concerned, the principle is rather well settled by authoritative decisions of the apex Court as well as this Court. It is well known that res judicata is a mixed question of fact and law. It has to be specifically pleaded and parties reliving on the principle of res judicata should place before the court all material particulars which would be sufficient to give a finding whether the particular case is barred by the principle of res judicata. In the case of Gurrala Jaggarao v. Gopisetti Bhaskar Ramachandra Rao Dora : AIR 1958 Ori 58, a Division Bench of this Court held that a plea of res judicata which was never raised before the Court nor the pleadings of the parties were before the Court, such a new plea could not be allowed to be raised at the appellate stage when further materials may be necessary for the purpose of determination of the issue. In the case of Sahadeb Naik v. Satyabadi Naik : AIR 1984 Ori 30, this Court laid down that a plea of res judicata has to be specifically pleaded and proved an such a plea would not be available for the first tune in second appeal.