BALA SAH Vs. PALTU MANDAL

JUDGEMENT

(1.) SINCE the common question of fact and law are involved in these civil revision applications, they have been heard together and are being disposed of by this common order.

(2.) DEFENDANT is the petitioner in these civil revision application which arise out of an order dated 12.5.1992 passed by the learned Munsif in Title Suit No. 79/91 by which the learned Munsif has refused to hold that the present suit is barred by the principle of res judicata in view of the findings arrived at in Title Suit No. 133 of 1964 as well as allowed the amendment of the plaint sought for by the plaintiffs. The plaintiffs opposite party filed a suit for declaration that the plaintiffs are the Kaimi occupancy raiyats with respect to the suit land pertaining to plot no. 1146 corresponding to C.S. plot no. 1008 in village Kuanil fully described in the schedule of the plaint, having a valid title and the defendent has no interest in the suit land, which was registered as title suit no. 79 of 1991.

(3.) THE case of the plaintiffs, in short, is that the disputed land exclusively belonged to Raj Darbhanga. The disputed land along with other land were sattled in favoJr of one Sir Narain Chand in the year 1941 and since then the said Sir Narain Chand was coming in possession and paying rent thereof. The plaintiffs purchased the land through registered sale deed in the year 1954 and since then the plaintiffs are coming in possession over the land in question. It in alleged that subsequently the land was partitioned according to the convenience of the other brothers. According to the said partition it is alleged that the western portion of the suit land allotted to Syamlal Mandai, Akhleshwari Mandal and Ramji Mandai and remaining eastern portion of the land pertaining to plot, in question, was allotted to Ramlal Mandai and, accordingly, they came in possession of their respective shares. Accordingly, it is alleged that the defendant has no right, title and interest over the suit land. The defendant, on the other hand, claims to be rightful owner of the land, in question, by virtue of a decree obtained in earlier title suit, namely, Title Suit No. 133 of 1964. Because of the constant threat of the defendant on the basis of the alleged decree the plaintiffs had no alternative but to file the instant suit for the reliefs, as stated above. During the pendency of the suit the defendant petitioner filed a petition purported to be under Section 11 C.P.C. with a prayer to hold that the instant suit is not maintainable as it is hit by principle of res judicata because of the judgment and decree passed in earlier suit, namely, Title suit No. 133 of 1964. The plaintiffs filed a rejoinder thereto. Similarly, the plaintiffs have also filed a petition for amendment of the plaint on filing of the petition under Section 11 C.P.C. by the defendant. Learned Munsif by the impugned order has rejected the petition filed under Section 11 C.P.C. whereas allowed the amendment sought for by the plaintiffs. Hence this civil revision application.