BRIJ RATAN KOTHARI Vs. AKLESH SAHU

JUDGEMENT

(1.) Both the appeals have been filed against the same judgment and decree dated 4th April, 1996 passed by the Asstt. District Judge, Jorhat in T.A. No. 20 of 1990. By the impugned judgment the Learned Judge set aside the earlier judgment and decree dated 3.4.90 passed by the Munsiff No.2, Jorthat in T.S. No. 8 of 1981 and he partly decreed the plaintiffs suit, namely decree praying for restoration of the possession of the portion of the land (5 lessas) to the plaintiff and the rejected the other claim of the plaintiff.

(2.) Second appeal No. 123/96 has been filed by the defendant against the decree for restoration of possession of 5 lechas of land and Second Appeal No. 139/96 has been filed by the plaintiff against the rejection of the plaintiffs prayer for restoration of other 5 lechas of land. Both the appeals have been heard together and this common judgment shall dispose of both the appeals.

(3.) I have heard Mr. B.K. Goswami, Learned Advocate for the appellant in S.A. No. 123/96 and respondent No. 1 in other appeal and Mr. B.R. Dey, Learned Advocate for the appellant in S.A. No. 139/ 96 and respondent No.1 in S.A. No. 123/ 96. Following are the substantial questions of law involved in these appeals : i) Whether the learned Assistant District Judge was right in holding that the suit was not barred by the principle of Res-judicata? ii) Whether the Learned Assistant District Judge was justified in holding that the plaintiffs suit was not barred by Sec.47 C.P.C. ? iii) Whether the Learned Assistant District Judge was justified in not considering the effect of the provisions of Rules 99, 101 and 103 of Order 21 CPC.