KARUNA DEVI Vs. ASHOK CHOUDHARY

JUDGEMENT

(1.) THIS appeal is directed against the appellate order dated 11.11.2003 passed by the 1st Addl. District Judge, Nalanda at Biharsharif in T.A. No. 7/2003 arising out of T.S. No. 17/2000 whereunder he has remanded the suit for trial in accordance with law. Respondents no. 1 to 3 filed the above title suit, inter alia, for a declaration that the decision of the previous T.S. No. 18/84 and the appeals preferred therefrom are not binding on them and that they are in possession of the suit land as owner and in the alternative their title has been perfected by adverse possession. As during the pendency of the instant suit Baldeo Choudhary (defendant no. 5), father of the plaintiffs/ respondents no. 1 to 3 died, the other respondents were substituted in his place.

(2.) THE case of the plaintiffs/ respondents in plaint is that Holding No. 863 belonged to their father (defendant no. 5) and his brother Etwari Choudhary. There was partition between Etwari Choudhary and Baldeo Choudhary, the father of the plaintiffs in which northern side was allotted to their father Baldeo Choudhary and they have been coming in peaceful possession over it. In February, 2000 the defendants/appellants came to their house and asked them to vacate it on the plea that they had obtained a decree in respect of that house. They made enquiry and came to know about T.S. No. 18/84 in which the above decree was passed. Their further case is that their father did not execute any sale deed dated 15.3.1972 in favour of Etwari Choudhary in respect of the said property nor gave him any possession. Therefore, the claim of the defendants/appellants over it on the basis of the sale deed of Etwari choudhary is false, and that they never also came in possession over the suit land on the basis of any sale deed. Their further case is that the plaintiff/respondent Santosh Choudhary, S/o Baldeo Choudhary was never made a party in that suit and one Butta Choudhary was made a defendant as son of Baldeo Choudhary, but he was not the son of Baldeo Choudhary. Plaintiffs no. 1,2 were minors at that time, but no G.A.L. was appointed for them. In the decree one Kaisar Imam, Advocate of Mohalla Moghal kuan has been shown as guardian; but there is no such person in that Mohalla. No written statement was filed on their behalf nor any cross -examination was done nor argument was advanced on their behalf in the suit. Their interest thus was not protected causing prejudice.

(3.) THE appellants then filed a separate petition under that as the suit is barred by res -judicata, the same be dismissed. The respondents filed rejoinder. The learned Sub -Judge I, Nalanda after perusing the judgments of the previous suit and the Vakalatnama filed in the 2nd appeal, came to this finding that in the earlier T.S. 18/84 the G.A.L. was appointed for the plaintiffs, who were minors and he had filed written statement. Their interest were well protected. They hotly contested the previous suit upto High Court. Therefore, no prejudice was caused to them. The Vakalatnama filed by Baldeo Choudhary in the second appeal also shows that the plaintiff Santosh Choudhary of this suit and Butta Choudhary of the previous suit is the same person. The property involved and the parties in both the suits was same.