NIRUPAMA MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE plaintiffs -petitioner" have preferred this revision application against the order dated 15th July, 1995 passed in Title Suit No. 236. of 1993. By the Impugned order the learned sub -Judge IVth Bhagalpur allowed the petition which was filed by the Intervenor defendant -opposite parties under Sub -Rule (2) to Rule 2 under Order 14 of the Code of Civil Procedure and ordered to decide a preliminary Issue, as to whether the suit is barred by the law of res -judicata or not.

(2.) ACCORDING to the defendants the Court below rightly framed the issue of res -judicata as preliminary issue as the matter stood decided in an earlier suit. It is stated that one Title Suit was filed by Shrimati Panna Oai in which she claimed right and tide with respect to the suit land, in which the husband of the petitioner (Basant Kumar Mishra) along with the other petitioners were defendants The suit was decreed in favour of said Panna Dai against which the petitioners earlier moved in the first Appeal No. 15 of 1968 which was also dismissed for default. It is stated that Basant Kumar Mishra having died by that time the petitioner No. I was substituted and he was the appellant in the said First appeal along with the rest of the petitioners. Further according to the defendants the State of Bihar acquired the total land of Shrimati Panna Dai and thereby stepped into the shoes of Panna Dai and after such acquisition allotted the suit land in question to the defendants. It stated that the afore said admitted facts shows that the question framed by the Court below is a pure question of law and can be adjudicated as preliminary issue.

(3.) ACCORDING to the plaintiffs -petitioners the State of Bihar had not acquired the total land, of Srimati Panna Dai, measuring 5 acres 36 decimals. It was only 4 acres 57 decimals of land was acquired by the State of Bihar out of plot No. 22611 and other plots in pursuance of land Acquisition case No. 3/63 -64. No land was acquired out of Plot No, 22618 which is the land in question in the present suit. It is submitted that the question being a mixed question of facts and law the Court below should not have ordered to decide the issue as a preliminary issue.