GOBIND GOGOI Vs. PHANIDHAR GOGOI AND ORS.

JUDGEMENT

(1.) (Oral) - This plaintiffs appeal arises out of the suit which the plaintiff had filed for declaration that the land in suit described in Schedule 'Ka' with the plaint was the self-acquired property of the father of the plaintiff, and the defendant nos. 1 and 2 had not acquired any right and title in the property by the decree passed in Title Suit No. 13/67.

(2.) The plaintiffs case was that the land in suit was the self-acquired property of his father late Gopiram, that on the death of his father the property had devolved on him and the defendant nos. 4 and 5 Jointly, and the same was in their possession, but that the defendant no.1 falsely claimed 1/4th share in the land along with some other ojmali land and had filed Title Suit No.13 of 1967 for declaration of his title to 1/4th share, in which an ex-parte decree was passed by suppression of summons. The plaintiff had filed a petition under Order 9 Rule 13 of the Code of Civil Procedure hereafter referred as the 'Code' for setting aside the ex-parte decree but the same was dismissed on 18.1.1974. Hence the suit.

(3.) The proforma defendants 4 and 5 had filed written statement. The principal defendant along with the defendant No.2 contented on the plea that the suit was barred by resjudicate and was not maintainable. The learned Assistant District Judge had framed two preliminary issues and had decided the same against the plaintiff and dismissed the suit. The plaintiff went in appeal, and the learned appellate court below by judgment and decree dated 28.2.1981 held that the preliminary issues had been rightly decided by the trial court, and the appeal was dismissed.