RAMO BARMAN Vs. DAGRIPRIYA KACHARI

JUDGEMENT

(1.) Some important and interesting questions of law arise for consi-deration in this appeal. These are : (i) whether the trial Court having decided an issue as a preliminary issue is entitled to reconsider the same at a later stage in the same suit ? (ii) whether it is open to the parties to challenge the decision of the trial Court on a pre-liminary issue along with other issues in an appeal against the decree of the Court ? And (iii) whether an ex parte decree operates as res judicata in any subsequent suit between the parties in respect of the same subject matter ?

(2.) Before proceeding to examine these points, it may be expedient to briefly set out the facts of the case which have given rise to the present appeal. The appellants, as plain-tiffs, filed a suit in the Court of Munsiff, Nalbari for declaration of their title, interest and possession over the suit land. Their case was that the suit land along with some other lands belonged to Late Ladhom Boro who sold the suit land to the pro forma defendant No. 4. The plaintiffs purchased the suit land from pro forma defendant No. 4 and thus became the owners thereof. Their names were mutated in the land records and they were in peaceful possession thereof. In the year 1967 the defendants Nos. 1, 2 and 3 (respondents herein) filed a Title Suit against them in the Court of Munsiff, Nalbari which was num-bered as Title Suit No. 32 of 1967. The suit was decreed ex parte in favour of the defendants-respondents. Efforts to get the ex parte decree set aside also failed with the judgment of the High Court passed in revision by which the order of the trial Court setting aside the ex parte decree was reversed. The defendants-decree holders took steps for exe-cution of the ex parte decree. At that stage, the suit, (which has given rise of the present appeal) was filed by the appellants praying for declaration of their title over the suit land, for declaration that the ex parte decree passed in Title Suit No. 32 of 1967 was illegal and void and for injunction restraining the defendants from executing the said ex parte decree.

(3.) The suit was contested by the main defendants, who filed a joint written state-ment on the ground, inter alia, that the suit was barred by res judicata. According to the contesting defendants, the land described in the Schedule 'Ka' to the plaint, which also included the suit land, was the self-acquired property of late Ladhom Boro. The defendant No. 1 Dagripriya Kachari is the daughter of the said Ladhom Boro. On the death of Ladhom Boro his entire estate devolved on her, as the sole surviving heir. Defendant No. 1, at the time of her father's death, was a minor. Taking advantage of her minority, pro forma defendant in collusion with others sold the suit land to one of appellants-plaintiff No. 1. In such circumstances, the defendant No. 1 (respondent herein) filed the Title Suit (No. 32 of 1967) which was decreed ex parte. A Title Execution case was instituted which was numbered as Execution Case No. 12 of 1967. In this execution case, the defendant No. 1 got delivery of possession of the suit land from the resent appellants on 7-6-76.