CHINTAMONI PADHAN Vs. PAIKA SAMAL

JUDGEMENT

(1.) THE litigation giving rise to this appeal has had a chequered career. The plaintiffs own 16.67 acres of land recorded in Khata No. 32 of Mouza Santhasara within the State of Dhenkanal. These lands were being enjoyed in four separate shares plaintiffs 1, 2 and 3 having one share each and the father of plaintiffs 4 and 5 being the other cosharer. Sometime prior to 1930 plaintiff 1 leased out ft small portion of the holding, measuring 1.28 acres, for cultivation on Bhag. The Tahsildar of the State recommended the resumption of the entire holding on the ground that the executant had mortgaged the lands without the authority of the State, and on 26 -1 -1931 the Ruler of Dhenkanal ordered resumption of the entire holding. Thereafter the lands were re -settled, on 21 -9 -1932, with the present defendant 2 and the father of the present defendants 3, 4 and 5. By an order of the Ruler, dated 21 -11 -1932 their names were mutated and pattas were granted in due course. But the plaintiffs did not surrender possession to the new tenants. They averred that they were still in possession of the homestead lands recorded in the aforesaid Khata though the defendants had taken forcible possession of the cultivated lands in January 1937. The plaintiffs complained to the Chief Minister of the State who by an order dated 7 -12 -1944, directed them to file a suit in the Civil Court and establish their title to the suit lands. The present suit was accordingly filed on 23 -5 -1945 for a declaration that the plaintiffs are entitled to recover possession of the holding and that the resumption and re -settlement of the lands by the Ruler are illegal and void, and that the defendants had acquired no right in them. They pray that they may be put in possession of the lands and that the defendants be evicted as they are mere trespassers.

(2.) THE suit was hotly contested by the defendants who raised a number of pleas regarding the maintainability of the suit and averred that the Civil Court had no jurisdiction to entertain it, The two issues that were material for the disposal of the suit were: (1) whether the suit is barred by limitation under Article 14, Limitation Act, and (2) whether it is barred by res judicata on account of a prior decision in favour of the defendants by the District Court of the Ex -State of Dhenkanal in O. S. No. 38 of 1938 -39.

(3.) THE learned Munsif who heard the suit after remand applied his mind only to a consideration of the question of res judicata and came to the finding that the suit was not barred by the principle of res judicata. He observes: 'All other issues having been already decided in plaintiff's favour, this suit therefore succeeds.'