RAM SANJIWAN SINGH Vs. BHOLA PRASAD THAKUR

JUDGEMENT

(1.) This revision application is directed against an order dated 13-9-1985 passed by Shri K. K. Chaubey, Munsif, Sikrahna at Motihari in Title Suit No. 138 of 1982, whereby and whereunder, the learned Court below has refused to decide the issue of res judicata as a preliminary issue on the ground that in view of the facts and the circumstances of the case it was not possible for him to decide the issue at that stage.

(2.) In view of the point of law involved in this civil revision application, it is not necessary to state the facts in details. Suffice it to say that the Opposite party No. 1 instituted a suit for eviction of opposite party Nos. 2 and 3 from the house in suit as described in Schedule 1 appended to the plaint as also for decree for arrears of rent. According to the petitioner, although he was not a party to the said suit but having come to learn thereof he filed an application for adding himself as a party therein which was allowed. He, thereafter, filed a written statement contending inter alia therein that the question with regard to the title in relation to the land in suit was the subject matter of an earlier suit being title No. 95 of 1964. The said suit was dismissed. The petitioner has further asserted that the afore-mentioned decree was challenged in first appeal before District Judge which was allowed and the judgment of the appellate court was affirmed by this Court in Second Appeal. According to the petitioner, delivery of possession of the land in question was also obtained in execution of the decree passed in the aforementioned appeal. The petitioner, therefore, contends that in view of the judgment and decree passed in the afore-mentioned Title Suit No. 95 of 1964, the same operates as resjudicata so far as the title suit No. 138 of 1982 is concerned. Before the learned court below both the parties filed various documents. However, the petitioner did not file the judgment of this Court in Second Appeal No. 669 of 1974 but filed the judgment of the first appellate court only. The learned court below after taking into consideration the submission made by the parties observed as follows ;

(3.) Plainly enough, the learned court below by his impugned order has expressed his liability to decide the question of res judicata at that stage without taking into consideration the other evidence which might be brought on the record at the time of trial.