SHEIKH HABIBULLA Vs. JAMUNA SINGH

JUDGEMENT

(1.) The rule in this case has been issued at the instance of the defendant-petitioner calling upon the plaintiffs and some of the defendants, who constitute the opposite party, to show cause why the order dated 10th April 1956, passed by the trial Court holding that the defence of the defendants is barred on the principle of res judicata' be not set aside.

(2.) The conflict here between the parties substantially centres round the question of title and possession as to five annas and four pies milkiat interest in village Tilberia, bearing touzi No. 1474 in the district of Saran. Originally two suits had been instituted in that regard. The first was by the defendant-petitioner and that was in the first Court of Munsif, Siwan, bearing Title Suit No. 43 of 1951. Therein the relief sought was for the declaration of title land confirmation of possession over that property. The other, namely, Partition Suit No. 38 of 1952, which has given rise to this application, was instituted by the present plaintiffs-opposite party and that was in the Court of the Subordinate Judge, Chapra. Therein the relief sought was one for partition of that share, namely, five annas and four pies, on the plea that the same was acquired by them under an auction purchase and a zerpeshgi bond. In answer thereto the plea set up by the defendant-petitioner was the same as that averred in his plaint of the former suit.

(3.) It, however, appears that subsequently on application made by the one or the other of the parties, the previous suit, namely, Title Suit No. 43 of 1951, was got transferred to the same Court where the latter suit, namely, Partition Suit No. 38 of 1952, was still pending for disposal.