KRISHNA KANTA OJA Vs. GADADHAR OJA AND ORS.

JUDGEMENT

(1.) This Second Appeal has been directed against the judgment dated 30.09.2010 and decree dated 13.10.2010 passed by the learned Civil Judge (Senior Division), Barpeta, in Title Appeal No. 7/2009 affirming the judgment and decree dated 06.01.2009 passed by the Munsiff No. 2, Barpeta, in Title Suit No. 41/2007. The facts of the case is that the respondent Nos. 1 and 2 had filed Title Suit No. 82/2003 in the Court of Munsiff No. 2, then known as Civil Judge (Junior Division) No. 2, against the present appellant praying for a decree declaring right, title and interest over the suit land, for recovery of khas possession and for other consequential reliefs. Thereafter, the plaintiff Nos. 1 and 2 i.e. the respondent Nos. 1 and 2 herein, had made an application before the Court under the provisions of Order XXIII Rule 3(b) CPC with a prayer for permitting them to withdraw the suit. In the said application liberty to file a fresh suit was sought for only by the plaintiff No. 2 i.e. Hiralal Oja. Taking note of such prayer the learned Munsiff No. 2, Barpeta passed an order dated 14.06.2006 permitting the plaintiffs to withdraw the suit. Liberty to file fresh suit was, however, only granted to the plaintiff No. 2/respondent No. 2 herein. Thereafter, the plaintiff No. 1/respondent/respondent No. 1 had filed a fresh suit in the Court of Munsiff No. 1, Barpeta against the plaintiff No. 2/respondent No. 2 as one of the defendants thereby also impleading the defendants in the previous suit as party to the suit. The suit was numbered as Title Suit No. 152/2006. The said suit was subsequently transferred to the Court of Munsiff No. 2, Barpeta and it was re-numbered as Title Suit No. 41/2007. A perusal of the averments made in the plaint filed in both the suits would go to show that the subject matter involved in both the suits were one and the same, the only substantial difference being that the plaintiff No. 2 in the previous suit was impleaded as the defendant No. 1 in the subsequent suit.

(2.) The defendants in Title Suit No. 41/2007 filed written statement wherein in para 17 an objection has been raised to the effect that the suit filed by the plaintiff No. 1 of the previous suit was not maintainable since no liberty was granted to him by the earlier Court. Although there was a pleaded objection within the meaning of Order XXIII Rule 1(1)(4). It appears that the learned trial Court did not frame any issue to decide as to whether the suit was maintainable. Mr. Medhi submits that the plaint filed in Title Suit No. 41/2007 was later on amended whereby the defendant No. 1, Hiralal Oja was impleaded as the plaintiff No. 2. There was transposition of defendant No. 1, Hiralal Oja as the plaintiff No. 2 in the said suit and that may be the reason why the learned trial Court did not consider the necessity of framing any issue on this point. The trial Court had decreed the suit filed by the plaintiff Nos. 1 and 2 i.e. respondent Nos. 1 and 2 herein by the judgment and order dated 06.01.2009.

(3.) Being aggrieved, the appellant had preferred Title Appeal No. 7/2009 in the Court of learned Civil Judge (Senior Division), Barpeta. The said Title Appeal was dismissed by the learned Civil Judge (Senior Division), Barpeta by the judgment and decree dated 30.09.2010 and 13.10.2010 respectively. Being aggrieved, the appellant has instituted the present Second Appeal before this Court.