HEMACHAL SAHU Vs. KUMARMANI SA AND ORS.

JUDGEMENT

(1.) THIS is an appeal by Defendant No. 2 against the reversing judgment and decree of the learned District Judge of Sambalpur in a suit for partition and other alternate claims.

(2.) PLAINTIFF claimed that Defendant No. 1 Chandramani was the father of his two sons Hemachal and Santosh (Defendants 2 and 3 respectively). The A and B schedule properties belonged to the joint family of Defendants 1 to 3 and Defendant No. 4 was the wife of Defendant No. 1. Defendant No. 1 was the karta of the joint family. The first Defendant sold the disputed properties by a registered sale -deed dated 18 -5 -1963 (Ext. 1) for a consideration of Rs. 1,710/ - to the Plaintiff and this sale was for legal necessity. The B schedule properties had been mortgaged 'with Defendant No. 5 by the time the sale took place. Therefore, Defendant No. 1 put the Plaintiff in possession of the remaining property except the properties covered by the B schedule. It was agreed at the time of sale that Plaintiff would pay up the mortgage dues of the 5th Defendant and redeem the property. Accordingly Plaintiff filed a suit (Title Suit No. 64 of 1966) for redemption impleading all the present Defendants. In that suit, the present Defendant No. 1 also joined the Plaintiff as a co -Plaintiff. The learned Munsif came to hold that the sale was not for legal necessity. Accordingly the relief of redemption was not granted to the Plaintiff but to Defendant No. 1 as co -Plaintiff, Plaintiff claimed for partition and when Defendant refused, he came to Court with the suit claiming alternate reliefs.

(3.) THE question of res judicata was argued at length before the power appellate Court and the learned appellate Judge reversed the finding of the trial Court on the said issue.. He examined the matter afresh and decreed the Plaintiff's suit for recovery of possession. This reversing decree is assailed in second appeal and the main contention is that the present suit is barred by res judicata and, therefore, should have been dismissed.